Domestic Violence and Criminal Justice

Downloaded by [University of Defence] at 01:45 24 May 2016 Domestic Violence and Criminal Justice

This book aims to provide an up-to-date and comprehensive introduction to the subject of domestic violence and its interaction with the criminal justice system – including agencies such as the police, the Crown Prosecution Service, the probation service and Children’s Services, the courts and the prison service, as well as voluntary agencies such as Women’s Aid. The book also looks at how these various agencies work together at a local level and the coordinating role of the Home Office and the direction provided at a central level. Domestic Violence and Criminal Justice examines the phenomenon of domestic violence, the various forms it takes and the theories that have been put forward to explain it. It takes a historical approach to examine policy and legislative developments over the last forty years and how those developments make themselves manifest today. The authors provide an authoritative and critical account of the different agencies and the work they carry out both independently and jointly; they also consider the limits of a crime-centred response to domestic violence. The book provides a conceptual framework in which domestic violence and criminal justice might be better understood. It covers all the current issues in this field and it will be a ‘source book’ for directing to further reading. It will be essential reading for both students and practitioners in the field.

Nicola Groves is a Senior Lecturer in Criminology at Leeds Metropolitan University, and she specialises in teaching and research into domestic violence. Prior to becoming an academic Nicola worked in the voluntary sector primarily in the area of domestic violence. Terry Thomas is Visiting Professor of Criminal Justice Studies at Leeds Downloaded by [University of Defence] at 01:45 24 May 2016 Metropolitan University. He is a former local authority social worker and team leader, and is currently engaged in research in the areas of domestic violence and sexual offending. ‘A “must-read” for professionals, students, the voluntary sector, and anyone seeking to understand the nature of domestic violence and responses to it by the government, law, police and criminal justice practitioners. From a very contemporary standpoint, this important book critically reviews the development of legal, policing and criminal justice policies since domestic violence was transformed by feminism from a private trouble to a social issue still high on political agendas. It examines the insidious and harmful nature of domestic violence and its many forms, asking whether the patriarchal criminal justice system of England and Wales alone is able to deal effectively with such dangerous and damaging complexities.’ Jill Radford, Professor Emerita, Teesside University, UK

‘An excellent whistle-stop tour of everything a student should know about domestic violence and criminal justice. Easy to read and up to date – a must-read.’ Professor Nicole Westmarland, Co-Director of the Durham Centre for Research into Violence and Abuse, Durham University, UK

‘This is an important and timely book, which provides a unique overview of relevant law, policy, recent history and current practice. It is meticulous in its scholarship and wise in its conclusions.’ Ken Pease, Visiting Professor and Fellow, Jill Dando Institute, University College London, UK Downloaded by [University of Defence] at 01:45 24 May 2016 Domestic Violence and Criminal Justice

Nicola Groves and Terry Thomas Downloaded by [University of Defence] at 01:45 24 May 2016

Routledge Taylor & Francis Group LONDON AND NEW YORK First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Nicola Groves and Terry Thomas The right of Nicola Groves and Terry Thomas to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Groves, Nicola. Domestic violence and criminal justice / Nicola Groves and Terry Thomas. pages cm ISBN 978-1-84392-820-1 (hardback) -- ISBN 978-1-84392-819-5 (pbk.) -- ISBN 978-1-315-86307-8 (ebook) 1. Family violence--Great Britain. 2. Marital violence--Great Britain. 3. Criminal justice, Administration of--Great Britain. I. Thomas, Terry, 1946- II. Title. HV6626.23.G7.G76 2014 364.15’55--dc23 2013023247 ISBN: 978-1-84392-820-1 (hbk) ISBN: 978-1-84392-819-5 (pbk) ISBN: 978-1-3-1586307-8 (ebk) Typeset in Times New Roman by GreenGate Publishing, Tonbridge, Kent Downloaded by [University of Defence] at 01:45 24 May 2016 Domestic Violence and Criminal Justice is for my two daughters Eleni and Iolë with love and hope – Nicola Groves and the memory of Sandy Close who helped set up the first refuge in Halifax, West Yorkshire – Terry Thomas Downloaded by [University of Defence] at 01:45 24 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 01:45 24 May 2016 Contents

Acknowledgements viii Abbreviations ix Introduction x

1 Understanding domestic violence 1

2 Explaining domestic violence 25

3 Law and policy 44

4 Policing 64

5 Prosecuting 86

6 The courts, sentencing and punishment 103

7 Responding to domestic violence 127

Conclusions 146

Bibliography 150 Downloaded by [University of Defence] at 01:45 24 May 2016 Index 169 Acknowledgements

This book arose from our concern to examine the criminal justice system’s response to domestic violence which has traditionally been criticised yet has developed to be the primary response to domestic violence in the UK today. For the past 40 years feminist theory and activism has kept the issue of domestic violence on the public agenda and we would like to thank the many women who continue to be active in the field of preventing violence against women. In particular, we would like to acknowledge and thank those who have read, commented and suggested valuable ideas on individual chapter drafts: Laura Goldsack, Ruth Lewis, Sandra McNeill, Jill Radford and Nicole Westmarland. Ultimately, the views presented are our own and we exonerate the aforementioned from any blame with regard to mistakes, misinterpretations or any other failings of the text. Nicola would like to thank those who have not directly contributed to this book, but who have encouraged and supported her – in particular thanks to Gregory, Sheila and Philip. Downloaded by [University of Defence] at 01:45 24 May 2016 Abbreviations

ACPO Association of Chief Police Officers CAADA Coordinated Action against Domestic Abuse CCR Coordinated Community Response CJJI Criminal Justice Joint Inspection CPS Crown Prosecution Service CRB Criminal Record Bureau CTS Conflict Tactic Scale DASH Domestic Abuse, Stalking and Honour-based Violence DBS Disclosure and Barring Service DVO Domestic Violence Officer DVU Domestic Violence Unit FME Forensic Medical Examiner IDVA Independent Domestic Violence Adviser IPV Intimate Partner Violence ISS Integrated Safety Services ISVA Independent Sexual Violence Adviser LCSB Local Child Safeguarding Board MAPPA Multi Agency Public Protection Arrangements MARAC Multi Agency Risk Assessment Conference NAVSS National Association of Victim Support Schemes PSR Pre-Sentence Report SAP Sentencing Advisory Panel SARC Sexual Assault Referral Centre SDVC Specialist Domestic Violence Court Downloaded by [University of Defence] at 01:45 24 May 2016 SGC Sentencing Guidelines Panel TVCP Tackling Violent Crime Programme VPS Victim Personal Statement Introduction

This is a book about domestic violence and how the criminal justice system in England and Wales intervenes to support the victims of domestic violence and deals with the people who commit acts of domestic violence. It is a history of the last 40 years as well as a critical exposition of contemporary arrangements. The criminal justice system is taken to be a series of agencies and ‘actors’ with their own policies and procedures following and implementing relevant legislation. These include the police, prosecutors, Children’s Services, the probation service, housing authorities and others. As such it is not always a coherent system with a unified voice but a set of arrangements with tensions and disagreements that range from ‘healthy’ to ‘problematic’. We hope to put some of these tensions and disagreements under a degree of examination. Prior to the 1970s the agencies, professionals and practitioners that make up the criminal justice system kept domestic violence at arm’s length and were reluctant to get involved. In the twenty-first century they are very much engaged and many of them see it as a priority area for their respective work programmes.

Criminalisation Since the 1970s domestic violence has become recognised as not merely a private issue but as a social problem. Over the years there has been an identifiable increase in the recognition of domestic violence, and its various forms, (for example, so-called ‘honour’ killings), as criminal. This move to criminalise domestic violence legally locates the responsibility for the violence on the offender and not on the victim, who has traditionally even been blamed. This consistent path Downloaded by [University of Defence] at 01:45 24 May 2016 of criminalising domestic violence has been followed despite the fact that many victims do not self-identify their experience as domestic violence (never mind as ‘criminal’), and the majority do not report their experience of violence to the police. Nevertheless a criminal justice response has become the preferred option adopted by the UK government and recognising domestic violence as a crime has become an increasingly important part of government policy on crime control (Radford and Tsutsumi, 2004). Traditionally, research into the impact of a criminal justice response to domestic violence indicates that the criminal justice system falls short of providing Introduction xi justice in cases of domestic violence. Yet, there are examples of criminal justice initiatives which have ‘demonstrated that certain aspects of legal intervention can be effective and can play a vital part in protecting women and challenging men’ (Lewis, 2004: 205). In this context, this book aims to provide an overview of key policies, practice and initiatives that have been developed to respond to domestic violence – with degrees of varying success.

Austerity In recent years there has been a growing awareness of the nature, impact and consequences of domestic violence. The social and economic cost of domestic violence is immense. In the UK, estimates suggest the cost of domestic violence to be £36.7 billion (Home Office, 2010a). Yet, against this backdrop, the 2010s have seen cuts to domestic violence funding and resources as part of the Coalition government (Conservative and Liberal Democrat) austerity measures. The implications of the cuts have not yet been fully realised but initial research suggests that substantial reductions in funding from national budgets are leading to cuts in local domestic violence services, and that these cuts are even expected to lead to an increase in domestic violence incidence (Walby and Towers, 2012). This context provides a timely opportunity to consider the effectiveness of a criminal justice response to domestic violence.

Victim or survivor? The term ‘victim’ has been used in two ways: implying a master status of the individual women (i.e. she is a victim) and as a description of the experience itself (i.e. she was the victim of a violent attack). The first has recently come in for strong criticism and is often replaced by the term ‘survivor’. The second remains important for describing the act and women’s role within it. (Dobash and Dobash, 1992: 30)

The focus of this book is the criminal justice response to domestic violence. As such, for clarity, we refer to those who experience domestic violence and come into contact with the justice system as ‘victims’ as opposed to ‘survivors’. In so doing, we acknowledge that this term is widely critiqued and that ‘although the experience of domestic violence is one of victimization, those who experience Downloaded by [University of Defence] at 01:45 24 May 2016 domestic violence are rarely passive victims’ (Sanderson, 2008: 11). We concur with Lewis who suggests: ‘when women engage with the legal system, they do not do so merely as “victims”, rather, they are also “agents” who manage, negotiate, resist and challenge the violence’ (Lewis et al., 2000). ‘But neither are the “agents” able to make free choices from a full range of options’ (Lewis, 2004: 220). Some of the chapters in this book, particularly Chapters 3–6, are procedural in their approach, in an attempt to navigate a pathway through often complex criminal justice practice or policy. In adopting this approach we do not intend to marginalise the experience of victims and we note here that ‘any consideration of xii Introduction legal interventions should be attuned to the complexities experienced by women’ (Lewis, 2004: 220) who negotiate their way through the criminal justice system.

The present approach The structure of Domestic Violence and Criminal Justice concentrates on increasing awareness of domestic violence and developing deeper insight into the criminal justice system response to it. The book is intended to be an introduction to some historic and contemporary issues in the field of domestic violence and criminal justice. As stated we aim to take an historical approach to examine theory, policy and practice developments over the last 40 years and to outline how those developments make themselves manifest today. Our approach in terms of chapters is outlined as follows. Chapter 1, Understanding domestic violence, aims to increase knowledge of domestic violence by exploring, what we refer to as, the ‘politics of recognition’. In looking at naming, terminology and definitions of domestic violence we aim to explore some of the politics involved in naming and defining domestic violence; naming is not neutral. In order to understand what constitutes domestic violence, current definitions, the range of behaviours and the complex nature of violent intimate relationships are explored. Chapter 2, Explaining domestic violence, focuses on theoretical explanations that have been used to identify a cause of domestic violence. Explored in this chapter are radical feminist, family violence and intersectional approaches. The concepts of patriarchy, gender symmetry and coercive control are given particular attention. The approaches discussed co-exist, are often contradictory and none are beyond criticism, as each are a product of their time. Despite this, we argue that radical feminism is often misunderstood and that common critiques (of universalism and reductionism for example) are misplaced and based on simplistic understandings of radical feminism and of patriarchy in particular. The focus of Chapter 3, Law and policy, is to overview domestic violence related legal and policy developments in England and Wales. This chapter outlines the criminal legal framework adopted by the criminal justice system and also charts the development of UK government policy formed to respond to domestic violence. The chapter demonstrates that over the past 20 years in particular there has been incremental recognition of domestic violence as a criminal issue, despite the fact that the law does not explicitly criminalise Downloaded by [University of Defence] at 01:45 24 May 2016 domestic violence (Platek, 2009). An overview of policy development is given from the 1970s to the present day. It highlights the focus on crime prevention, reduction, the ‘safety and justice’ agenda driven by New Labour (1997) and the subsequent shift in focus to a ‘call to end violence against women and girls’ (HMG, 2010) developed by the Coalition government in 2010. Historically, the majority of domestic violence victims do not report their experience to the police. Recent figures show that only an estimated 25 per cent of women report violence by a partner to the police (CPS, 2012). Chapter 4, Policing, provides an overview of both reactive and proactive police work to domestic violence. Introduction xiii The chapter highlights different stages in policing from reporting, arrest, detention, investigation and charging. It further provides an overview of protective orders including the non-molestation order, occupation order, restraining order, violent offender order and the domestic violence protection order. Chapter 5, Prosecuting, considers the role of the Crown Prosecution Service (CPS) in its handling of cases which involve domestic violence. In so doing, this chapter outlines the process of charge and prosecution and the position of vulnerable and intimidated witnesses and the ‘special measures’ that should be available to them. Chapter 6, The Courts, sentencing and punishment, looks at the different criminal and civil courts involved in processing domestic violence cases and the proceedings as they affect defendants and witnesses in courts. Criminal justice, at its best, arguably only offers a partial response to domestic violence and today multi-agency working is viewed as the best way forward to prevent and respond to domestic violence. Chapter 7, Responding to domestic violence, summarises several strands that we identify as being influential in establishing multi-agency work around domestic violence. This chapter lists and describes these different strands and explores the development of the multi- agency response to domestic violence from the 1970s to the present day. This chapter aims to contextualise the journey that has led to the development of relatively recent multi-agency, criminal justice initiatives such as Multi Agency Public Protection Arrangements (MAPPA), Independent Domestic Violence Advisors (IDVAs) and Multi Agency Risk Assessment Conferences (MARACs). In so doing, this chapter analyses the transformation of the multi-agency response to domestic violence over recent decades. Downloaded by [University of Defence] at 01:45 24 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 01:45 24 May 2016 1 Understanding domestic violence

Introduction In this chapter we seek to respond to seemingly simple questions such as ‘Why is domestic violence so named? What is domestic violence? What is the nature and extent of domestic violence?’ These questions appear to invite a straightforward answer yet in reality such questions are often debated, controversial and call for a considered response. These questions are by no means ‘new’. Radical feminist academics and activists, practitioners and policy makers have been researching and debating these questions since the late nineteenth/early twentieth century in the UK. It is against this wealth of knowledge that we seek to readdress these questions examining just how ‘adequate’ current definitions are and what challenges definitions, terminology and the nature and extent of domestic violence currently pose for the criminal justice system. We consider this in three sections:

1 Naming domestic violence 2 Defining domestic violence 3 Nature and extent of domestic violence.

Naming domestic violence ‘Naming’ historically and logically precedes ‘defining’, as until something is named, it is impossible to speak about it. Early campaigns against sexual violence against women and girls, such as the campaigning by The Women’s Freedom

Downloaded by [University of Defence] at 01:45 24 May 2016 League (established in 1907) referred to ‘unspeakable outrages’ making the point that ‘respectable’ women could not even talk about anything sexual. Historically, where violence against women is named terms have been debated. Nineteenth-century accounts commonly refer to ‘wife beating’ and ‘wife kick- ing’ yet a feminist campaigner of the time Frances Power Cobb argued that the term ‘wife beating’ did not reflect the severity of domestic violence suggesting ‘wife beating is more the preliminary canter before the race’ and preferred to use the term ‘wife torture’: ‘Wife beating in process of time and in numberless cases, advances to wife torture and the Wife torture usually ends in Wife maiming, 2 Understanding domestic violence Wife blinding or Wife murder’ (Power Cobb, 1878 cited in Radford and Russell, 1992: 48). In the UK, in the 1970s, the phrase ‘battered wife’ was popularly referred to but over time, with insight from the feminist movement, this term has fallen out of currency. Battering referred only to one form of violence – physical – and did not encompass sexual or psychological. Today, ‘battering’ is a term used in the United States; here in the UK ‘domestic violence’ is used, primarily for the prag- matic reason that it is understood in the public domain. Despite the widespread use of the term ‘domestic violence’, it has always been criticised and there are still a variety of terms currently in use. These terms or ‘names’ include:

• domestic violence • domestic abuse • intimate partner violence (IPV) • family violence • forced marriage • honour based violence • gender violence • coercive control.

At first glance, whether we refer to ‘domestic violence’ or ‘domestic abuse’ may seem irrelevant, and merely a matter of semantics and of little consequence compared to the reality of violence experienced by its victims. We argue that there are several areas in which ‘naming’ is significant and reflection on terminology and the politics of naming can prove useful both for the student and practitioner alike. The Home Office definition has traditionally referred to ‘domestic violence’ only but following a recent consultation exercise the new Home Office definition refers to ‘domestic violence and abuse’ (Home Office, 2013). The inclusion of the term ‘abuse’ is not without meaning. It has been suggested by some scholars that ‘there is a move for all agencies to adopt the term “abuse” as it reflects a pattern of behaviour which is both criminal and non-criminal in nature and better reflects the true nature of this type of incident’ (Richards et al., 2008: 12). Perhaps the most important aspect of considering ‘naming’ is in relation to victims experience of seeking support, as self-identifying behaviour as ‘violent’ can be important in the process of recognising that domestic violence is occurring. Downloaded by [University of Defence] at 01:45 24 May 2016 Walby and Allen (2004), for example, found that victims who named incidents as domestic violence were more likely to seek help than those who did not. Women were also more likely to name what happened to them as domestic violence if the violence was physical and if they were severely injured or frequently assaulted and older women were more likely than younger women (especially those 16–24 years) to name the event as domestic violence (Walby and Allen, 2004). Such findings echo research conducted by Kelly and Radford (1990) in their memorably named article ‘Nothing Really Happened’. They highlight the confusion and minimisation faced by victims coming to terms with identifying their Understanding domestic violence 3 own experiences of both sexual and physical violence. They explore the meaning of the phrase ‘nothing really happened’ to the women themselves and analyse how the minimising and discounting of events that did happen were reflected in and reinforced by the criminal justice system. Underlying Kelly and Radford’s analysis is the recognition that ‘in order to speak about something one must first be able to name and define it’ (Kelly and Radford, 1990: 40). They argue that one of the key contributions of feminist scholarship and activism is to have found and redefined words to reflect women’s experiences of violence. They point out that words such as ‘domestic violence’ prior to feminist recognition simply did not exist and that social definitions are required to enable women and others to identify, recognise and speak about their experience. In essence ‘names provide social definitions, make visible what is invisible, define as unaccepted what was accepted; make sayable what was unspeakable’ (ibid.).

Domestic violence The term ‘domestic violence’ is useful in that it highlights the intimate nature of violence that can occur in relationships. ‘Domestic violence’ is used to describe the relational context of the violence although it might be argued that ‘domestic’ has an overly ‘cosy’ connotation and feeds the idea that this violence is not as important as other violence (see below). Critiques of the use of the name ‘domestic violence’ have been cited. First, ‘domestic’ may suggest the term refers to those who live together, whereas ‘domestic violence’ can be experienced at different stages of a relationship and is not limited to those who share a living space. Research exists that shows a quarter of women who had experienced domestic violence, had never lived with the partner who had committed the worst act of violence against them (Walby and Allen, 2004). Men’s violence towards women often continues after separation and Lees (2000) found that women are at greatest risk of homicide at the point of separation or after leaving a violent partner. Humphreys and Thiara (2002) in a study of 200 women who had experienced domestic violence found that 76 per cent suffered post separation violence. Saunders and Barron (2003) looked at the experience of abused women and children in family courts and found that 46 per cent of service provider respondents knew of cases where a violent partner had used contact proceedings to track down his partner. Second, feminists have long been critical that the term ‘domestic’ masks the Downloaded by [University of Defence] at 01:45 24 May 2016 issue of gender. Although it is acknowledged that men can be victims of domestic violence, women are the more likely victims and research consistently demonstrates ‘the fact that perpetrators tend to be men and their victims usually women’ (Dobash and Dobash, 1980; Abrahams, 1994; Mooney, 1994 cited in Hester et al., 2000: 14). Prevalence studies indicate that 1 in 4 women experience domestic violence over their lifetimes (Council of Europe, 2002). In the UK, the Crime Survey for England and Wales (2011/12) demonstrates that ‘some 7 percent of women and 5 percent of men were likely to be victims of domestic abuse in the last year, equivalent to an estimated 1.2 million women’ (Office for National Statistics, 4 Understanding domestic violence 2013: 2). Similarly when looking at homicide, the relationship between victims and perpetrators differed by gender with ‘homicides against men most likely to be committed by a friend or acquaintance (39%) whereas homicides against women were most likely to be committed by a partner or ex-partner (51%)’ (Office for National Statistics, 2013: 2). Third, although the relational aspect of violence is encapsulated in the term ‘domestic violence’ it fails to identify perpetrators as ‘known men’. Although the intimate nature of domestic violence is explicit, the naming of perpetrators as boyfriends, partners, brothers, uncles, fathers and grandfathers is not. Fourth, debate exists around the use of the word ‘violence’. In considering the limitations of the term domestic ‘violence’ and citing Barron et al. (1992) and Hague and Malos (1993), Hester et al. (2000: 14) suggest ‘“violence” may indicate exclusively physical abuse, whereas individuals subject to domestic violence experience a range of different forms of abuse from their partners, not all of which are, in themselves, inherently “violent”’. Feminists have long acknowledged not only physical and sexual violence as part of domestic violence but also psychological ‘abuse’ and controlling behaviour. As such seemingly non-violent behaviours, i.e. name calling, controlling who the woman sees, who she speaks to, while not obviously violent in nature are accepted as behaviours pertaining to domestic violence. The gendered power dynamics of such behaviour highlights the significant role of men’s power and control and the resulting fear that women experience subject to men’s abusive or threatening behaviour. As such, women often say that it is not the actual physical violence that is their main concern, but the fear associated with violence or threatening behaviour (Humphreys and Thiara, 2003; Pain, 2012). In the politics of naming domestic violence it is important to recognise the gendered power dynamic involved in domestic violence that allows perpetrators to claim that they too are victimised by abuse i.e. ‘nagging’. This was keenly brought to the public attention some 20 years ago when in 1992 Joseph McGrail was given a suspended sentence having killed his wife that he accused of exactly such behaviour (see www.justiceforwomen.org.uk). Although ‘domestic violence’ is commonly associated with the home and behaviour which happens in private – ‘behind closed doors’ – the extent of men’s violence towards women is not confined to the domestic sphere. There is growing awareness that it can oscillate between the private and public sphere and can include new patterns of controlling behaviour. Increasing technological advancement and the development of social network sites provide a prime exam- Downloaded by [University of Defence] at 01:45 24 May 2016 ple. Women can be threatened, controlled, monitored and manipulated via their mobile phone, computer history, Facebook page and email accounts. If domestic violence is a pattern of controlling behaviour, then the process of abuse and its impact is more accurately experienced in everyday spaces, both private and public. This pattern of coercive control (Stark, 2007) coupled with incidents of physical violence in public places i.e. contact centres, Courts, streets, supermar- kets, restaurants, bars, schools and places of work, reflects the myriad of spaces in which violence can be used in intimate relationships. As such, ‘domestic’ violence is more accurately defined through relationships, not geographical location. Understanding domestic violence 5 Domestic abuse The increasing use of the term domestic ‘abuse’ by those in the criminal justice system is one which will be more familiar to our North American colleagues. The new Home Office (2013) definition refers to ‘domestic violence and abuse’ but the interchange of ‘violence’ with ‘abuse’ will not happen overnight or without debate. The inclusion of the term ‘abuse’ in the Home Office’s (2013) definition appears to acknowledge the broader spectrum of domestic violence and the inclusion of coercive and controlling behaviours. On the other hand, this inclusion may implicitly suggest a minimisation or even a step towards decriminalising domestic violence. In the UK the term abuse is more closely associated with child abuse to refer to children’s experience of psychological, physical and sexual violence. Many find child abuse a more comfortable concept than, for example, child rape and it arguably justifies the longstanding failure to take sexual violence against children seriously. Those referring to domestic ‘abuse’ often more readily subscribe to a health discourse and associated way of working, rather than a criminal discourse; domestic ‘abuse’ is the term adopted by the British Medical Association (2007). The use of the word ‘abuse’ in this context is perceived as either ‘passive’ or ‘active’ and is used as an alternative to ‘violence’ responding to the critique that ‘domestic violence implies the use of physical force and physical assault, not psychological, emotional, financial or sexual abuse’ (Sanderson, 2008: 21). Here the term abuse is underpinned by a broad medical model, advocating the benefits of a therapeutic approach in the support of those experiencing domestic violence while overlook- ing their role in respect of physical injuries.

Intimate partner violence (IPV) The term ‘intimate partner violence’ (IPV) is preferred by some as an alternative to domestic violence. The phrase IPV indicates that violence is likely to be experienced and perpetrated by those in a relationship. The phrase itself is gender neutral which, while limiting in its recognition of the gendered nature of domestic violence, is implicitly inclusive of same-sex relationships. The term IPV is more frequently used by North American criminal justice practitioners than those in Britain, although there is evidence of some use as The Crime Survey for England and Wales (previously known as the British Crime Survey) refers to ‘intimate

Downloaded by [University of Defence] at 01:45 24 May 2016 violence’. In the early 2000s most domestic violence definitions (including that of the Home Office) referred to violence within intimate relationships only; however, most now include violence against other family members (Westmarland, 2011: 288).

Family violence The term ‘family violence’ is preferred by scholars researching and practitioners working within Family Violence Studies and is more closely associated with 6 Understanding domestic violence the US rather than the UK. Family violence is an umbrella term that is inclusive of violence amongst any family members (e.g. child sexual abuse, elder abuse) but can also include violence between individuals who are not family members (e.g. dating relationships). This highlights a weakness in naming as it can prove somewhat confusing not least in public understandings. Such naming does not recognise a gendered power dynamic, as is the case in feminist understandings, rather the use of the term family violence implicitly suggests violence is gender neutral. In the UK, the traditional model of family violence is one which is held by many local authority Children and Adult Social Services departments.

Forced marriage The practice of forced marriage has more recently become recognised and ‘named’ as a form of domestic violence in the UK. ‘In 2008, over 1,600 incidents of suspected forced marriage were reported to the Forced Marriage Unit’ (HM Government, 2009: 10). Race and cultural factors that make experiences of domestic violence ‘different’ are incorporated into our understanding of domestic violence. Arranged marriages are part of some cultures where both parties are happy to consent to these arrangements. It is only when there is no consent by one or more of the parties that the marriage can be referred to as ‘forced’. If mutual consent is the perceived bedrock of Western marriage it has become clear that the use of duress and threats to force someone to marry another person is not acceptable. However, while there is clarity that forced marriage is an abuse of human rights, there is still confusion in defining and deciding how best the criminal justice system should respond to the issues. Forced marriage is defined by the UK government as

a marriage in which one or both spouses do not (or in the case of some adults with learning or physical disabilities, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure. (HM Government, 2009: 10)

The concept of consent in the government definition is clear in distinguishing forced marriage from the practice of arranged marriage:

Downloaded by [University of Defence] at 01:45 24 May 2016 There is a clear distinction between a forced marriage and an arranged marriage. In arranged marriages the families of both spouses take a leading role in arranging the marriage but the choice whether or not to accept the arrangement remains with the prospective spouses. (HM Government, 2009: 10)

Various feminist scholars argue that, in reality, such a clear distinction is misleading and that the distinction between ‘arranged’ and ‘forced’ marriage is more subtle (Siddiqui, 2003). Gangoli et al. (2006) and Hester et al. (2008c) found Understanding domestic violence 7 that defining forced marriage is highly contested. In particular it is suggested that ‘agencies, survivors, and members of different communities vary in how they conceptualise and understand forced marriage’ (Gangoli and McCarry, 2008: 44). Despite clear government definitions of forced marriage on paper, the challenge faced by criminal justice practitioners and those experiencing forced marriage are complex in terms of recognising, naming and negotiating a pathway through the reality of the practice. Forced marriage is not yet a crime in the UK, but it is prohibited under the Marriage Act 1949 and is a violation of the United Nations Universal Declaration of Human Rights, Article 16 (2). Plans are in hand to make it a crime (Travis, 2012a). South Asian scholars and activists are divided as to whether forced marriage should be criminalised or not. On the one hand criminalising forced marriage sends out a message to society that such behaviour is not legally acceptable; on the other hand it is argued that some women would not seek help if a consequence was to criminalise their parents (Gangoli et al., 2006). In the UK, forced marriage is not merely an issue in South Asian communities. It is also recognised that forced marriage is an issue in the majority community as people with learning difficulties and physical disabilities may be particularly vulnerable to forced marriage where one or both parties do not or cannot consent because of physical or learning disabilities (BBC News, 2011).

Honour based violence (HBV) An additional problem in terms of naming and recognising the range of domestic violence related experiences in the UK has been the faltering awareness that women from some cultures experience violence and death in the name of ‘honour’. Although not a new phenomenon, honour based violence in the UK is a relatively ‘new’ issue and as such the research is somewhat limited. Here is Siddiqui’s (2003: 263) definition of HBV:

An honour killing is murder in the name of ‘honour’. An ‘honour crime’ is one of a range of violent or abusive acts committed in the name of ‘honour’, including emotional, physical and sexual abuse and other controlling and coercive behaviours, such as forced marriage and female genital mutilation, which can end, in some extreme cases, in suicide or murder.

Downloaded by [University of Defence] at 01:45 24 May 2016 Siddiqui (2003: 263) argues that ‘there is no “honour” in domestic violence, only shame’ and refers to the sometimes ‘dangerous and shifting ground on which black and minority women have to raise issues of gender violence, negotiating the space or the intersection between race and gender’ (Siddiqui, 2003: 274). Recognising, naming and responding to so-called ‘honour killings’ by victims, communities and criminal justice agencies alike proves to be a complicated and issue-laden process. Siddiqui (2003) notes, for example, how, following the ‘honour killing’ of Heshu Yones in 2002, the black feminist campaign group Southall Black Sisters (SBS) allied themselves with Middle Eastern Women’s Groups 8 Understanding domestic violence (Kurdiah, Iraqi and Iranian) to fight Heshu Yones’ case. However, whereas SBS argued that understanding the honour killing had to be integrated into a domestic violence framework – integrating forced marriage, an ‘honour killing’ and domestic violence – ‘the Middle Eastern groups wanted to separate “honour killings” from domestic violence on the grounds that domestic violence is trivialised by the wider community and by the state and not regarded as a serious problem’ (Siddiqui, 2003: 276). The inclusion of honour killings in definitions of femicide yet furthers the degree of complexity (see Radford and Russell, 1992). Other ‘honour’ killing examples suggest that despite the victim recognising, clearly naming and speaking out about her experience of domestic violence from her husband and ultimately threats to kill from her own family, criminal justice agencies do not always hear what is clearly being named. Banaz Mahmod went missing from her family home in South London in January 2006 and three months later, in April 2006, her body was found buried in a suitcase in a garden in Handsworth, West Midlands. In July 2007 her father, uncle and a distant male relative were jailed for life for her murder. Subsequently, in 2010 two male cousins, who fled to Iraq after the killing, became the first suspects ever to be extradited to Britain from Iraq (see film Banaz: A Love Story, 2012). Banaz Mahmod was seen by her male relatives to have brought shame on her family as a result of leaving a violent husband who physically, sexually and psychologically abused her and for later starting a relationship with a boyfriend whom her family disapproved of. Banaz Mahmod had been proactive in contacting the police and records demonstrate that she reported incidents to both the Metropolitan Police and West Midlands Police on five separate occasions. Her eventual murder led to an investigation into her case by the Independent Police Complaints Commission which clearly demonstrated that Banaz Mahmod had been seriously let down by the police. The resultant IPCC report recommended that:

The IPCC investigation found a lack of awareness within the two police forces of the trigger factors of domestic violence and the impact that cultural issues can have on outcomes. The IPCC recommended that police forces in England and Wales should recognise that so called ‘honour based violence’ is more prevalent than previously understood and that this type of crime crosses cultural boundaries. It is therefore important for police forces to raise awareness of these issues by engaging with communities and developing partnerships; review and revise policies and literature in relation to domestic Downloaded by [University of Defence] at 01:45 24 May 2016 violence and cultural issues; engage with support groups dealing with such issues to develop trust and confidence. (IPCC, 2008: 12–13)

Finding the courage to ‘speak out’, and name violence for what it is, when often there is a community silence surrounding so-called honour killing, is another issue worthy of consideration. In 2003, 17-year-old Shafilea Ahmed went missing from her home in Warrington, Cheshire and six months later her body was discovered in the River Kent, Cumbria. The prosecution successfully claimed that she was Understanding domestic violence 9 murdered by her parents because she brought ‘shame’ on her family for refusing a forced marriage. It took one of her siblings several years to come forward and name what she had witnessed. At the parent’s trial, Alesha Ahmed, a sister of Shafilea, testified and told of the abuse her sister had experienced from her parents and also that she had witnessed her father and mother killing her sister. In August 2012 the parents of Shafilea Ahmed were given life sentences for her murder (BBC News 2012). In looking at broader understandings and experiences of domestic violence the applicability of Kelly and Radford’s (1990) notion that ‘Nothing Really Happened’ appears to be no less relevant today than it was 23 years ago.

Gender violence Following the International Tribunal on Crimes Against Women in Belgium in 1976 in which 2,000 women from 40 countries participated (Russell and Van de Ven, 1990) and decades of campaigning by feminists internationally the recognition of domestic violence as gender violence and as a human rights issue has been expressed by many governments and international organisations that have drawn up significant declarations defining violence against women (and children) as a violation of human rights. A human rights approach to violence against women was recognised at the Convention on the Eradication of All Forms of Discrimination against Women (CEDAW) adopted in 1979 by the United Nations General Assembly and also at the Fourth World Conference on Women in Beijing in 1995. In Beijing, 189 nation states, including the UK, signed the Platform for Action, which declared that ‘violence against women constitutes a violation of basic human rights and is an obstacle to the achievement of the objectives of equality, development and peace’ (United Nations, 1996).

The Declaration on the Elimination of Violence against Women is the first international human rights instrument to exclusively and explicitly address the issue of violence against women. It affirms that the phenomenon violates, impairs or nullifies women’s human rights and their exercise of fundamental freedoms. The Declaration provides a definition of gender-based abuse, calling it ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether Downloaded by [University of Defence] at 01:45 24 May 2016 occurring in public or private life. The definition is amplified in Article Two of the Declaration, which identifies three areas in which violence commonly takes place…’ One of these three areas is ‘Physical, sexual and psychological violence that occurs in the family, including battering, sexual abuse of female children in the household; dowry-related violence; marital rape; female genital mutilation and other traditional practices harmful to women; non-spousal homicide; and violence related to exploitation.’ (United Nations, 1996) 10 Understanding domestic violence Such recognition in the Beijing Declaration has contributed to awareness raising globally – through agencies like the European Council and British Council who have funded activist work in many countries and for example much of the international work of the Child and Women Abuse Studies Unit (CWASU) at London Metropolitan University.

Coercive control In the USA, Evan Stark (2007) has re-conceptualised domestic violence as ‘coercive control’. While not minimising the physical aspect of violence, Stark emphasises the on-going cumulative effects of violent men’s strategies to control, oppress and entrap women in personal life and in so doing emphasises the psychological and controlling aspects of men’s abuse in intimate relationships. Stark’s work echoes that of the feminist inspired ‘Duluth Wheel’ (Pence, 1987). The Duluth Wheel is a model of domestic violence which has at its core power and control as a driver for physical, sexual and psychological violence. In Stark’s analysis the spokes of the wheel are coercive rather than ‘violent’. In re-conceptualising domestic violence as coercive control Stark argues that coercive control is a violation of a victim/survivor’s human rights, in that women’s freedoms are intentionally curtailed by men and that as such it deprives women of equality, autonomy and freedoms. In this context, Stark (2007) argues that coercive control should be criminalised (in the USA) and recognised as a ‘liberty crime’; the UK government has accepted the arguments (Women’s Aid, 2012; for more on this see Chapter 2).

The politics of recognition of domestic violence This chapter so far has illustrated some of the ways in which domestic violence and its various forms has been named, re-named and re-conceptualised. In considering why domestic violence is so named, we have begun to consider the wider ‘politics of recognition’ of domestic violence. The purpose of discussing naming is to acknowledge not only the strengths and limitations of different words or phrases but to appreciate the wider politics involved. It has been argued elsewhere that in ‘presenting various forms of violence as distinct from each other and giving different names to them’ (Romito, 2008: 84) that the process of naming can serve to distract us from the broader issue of vio- Downloaded by [University of Defence] at 01:45 24 May 2016 lence against women. In discussing naming in the wider context of the ‘politics of recognition’ we are able to acknowledge both the interconnectedness of violence against women and the gendered power dynamics. Further it enables us to appreciate the significance of naming to both victims and criminal justice practitioners alike. The help seeking process can be hindered by a lack of recognition or willingness to name domestic violence for what it is. We should perhaps not be surprised that domestic violence is still widely underreported. Kelly and Radford (1990) highlight the significance of denial and minimisation by those experiencing domestic violence and by criminal justice practitioners; others demonstrate Understanding domestic violence 11 the importance of self-identifying domestic violence to the help seeking process. Walby and Allen (2004) found that some women do not name their experience as domestic violence unless it involves severe or frequent incidents. Finding the words, being able to name and speak both privately and publicly about ‘domestic violence’ can be a complex process for all those involved either as victims, offenders, practitioners, policy makers or scholars alike. This naming and speaking about domestic violence is not made easy by the gendered nature of violence and the fact that the main perpetrators of all the forms of domestic violence so far discussed are men. Integral to the ‘politics of recognition’ of domestic violence is the further recognition that the men involved in perpetrating violence are not strangers, they are known men – boyfriends, partners, fathers, uncles and grandfathers.

Defining domestic violence Despite widespread agreement that domestic violence is no longer acceptable, debate still exists as to the definition of domestic violence and ultimately the question ‘what is domestic violence?’ As part of examining the ‘politics of recognition’ of domestic violence, this section discusses definitions of domestic violence. In the UK there is no agreed definition of domestic violence. Definitions of domestic violence vary depending on the context in which the term is used. Professionals, from different sectors such as Criminal Justice, Social Services, Health Services and the voluntary sector, all develop or operationalise different definitions according to their ethos and purpose. As such, the police will use definitions that focus on crime and crime prevention because that is their remit; local authority Children and Adult Social Services will use definitions focussing on ‘family’ as their concern is with upholding the family ideology; and health care professionals will use definitions defined by physical harms and necessary medical interventions. Voluntary sector organisations such as Women’s Aid will use a definition based on victims/survivors’ experience of domestic violence as their concern is the safety and support of women. As such, a range of definitions are always in use. Differing definitions also exist because, as Kelly and Radford (1990) have argued, definitions of domestic violence change as we learn more about the nature of the issue. Definitions thus develop to accommodate new ways of seeing or conceptualising, for example the recognition of stalking as a crime (2010 in Scotland, Downloaded by [University of Defence] at 01:45 24 May 2016 2012 in England) or so-called ‘honour’ crimes as forms of domestic violence. The politics of recognition of domestic violence comes into play perhaps most poignantly when looking at the nature and purpose of definitions. When definitions do differ in nature, negotiating a range of different definitions becomes something of an inevitability. Multi-agency working, data collection and measurement, funding and resource allocation and service provision can all be directly or indirectly affected by definitions. There is no agreed statutory definition of domestic violence that is used by criminal justice agencies in England and Wales. There are currently 43 police 12 Understanding domestic violence constabularies in England and Wales and all have been encouraged to adopt the Association of Chief Police Officers’ (ACPO) definition of domestic violence. ACPO first drew up their definition in 2004: ‘Any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults aged 18 or over who are or have been intimate partners or family members, regardless of gender or sexuality’ (ACPO, 2004). This has been updated and is now shared with the Crown Prosecution Service (CPS):

Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality. (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.) (ACPO, 2008a: 7)

The police also use this definition to identify cases of domestic violence to be referred to the Crown Prosecution Service under the Directors Guidance on Charging (CPS, 2009).

Incident approach The ACPO and CPS definition highlights domestic violence as an ‘incident’. An incident based definition is appropriate in that it reflects the criminal law and criminal justice system, which requires that specific crimes are prosecuted on an individual basis. However, an incident based definition can suggest that the offending behaviour is a ‘one-off’ act or incident. Such a suggestion marginalises feminist research which demonstrates that domestic violence is rarely a ‘one-off incident’ (Kelly, 1988; Hanmer et al., 1999), that it is rarely ‘just a slap’ (Hanmer and Saunders, 1984) and that violence tends to escalate in severity over time (Kelly, 1988). An incident based approach fails to acknowledge the complex dynamic of the reality of ‘everyday’ violence which is more suggestive of a pattern of repeated abuse. Repeat victimisation is common and the number of repeat incidents of domestic violence is much higher than any other crime. Dodd et al. (2004) found that 44 per cent of victims of Downloaded by [University of Defence] at 01:45 24 May 2016 domestic violence were involved in more than one incident. Although the incident based definition has the problems identified above, these problems in practice can be mitigated by creative policing practice. Similarly the repetitive nature of domestic violence is recognised and addressed in police repeat victimisation policies. Domestic Violence Officers usually work with victims to build up a history of the violence prior to the incident that led to a police call out. Knowledge demonstrates that it is not always the most serious ‘incident’ that leads to a call out. The violence history is submitted to the Crown Prosecution Service and courts in the auxiliary Understanding domestic violence 13 notes to a case and offenders can be charged with several offences, so previous incidents are counted. Even if not in their formal definition, these issues have been addressed by ACPO and the Home Office since the early 1990s.

Adults only? The shared ACPO and CPS definition also precludes those victims less than 18 years old, implicitly implying that teenagers cannot be criminally culpable of perpetrating or experiencing domestic violence. The age of criminal responsibility in England and Wales is 10 years. It appears that the shared definition is at odds with this. The age at which criminal responsibility is set has been variously discussed by criminologists, politicians and practitioners working with young people in recent decades. Discussions revolve around at what age a child or young person can be deemed to know that their actions are ‘wrong’ and as such are culpable and responsible for his or her actions when they violate the criminal code of a given society. There has been relatively little research with young people about their attitudes to and experience of teenage domestic violence in the UK. Recent research which has been conducted evidences a need for professionals to take teenage domestic violence seriously. Surveys conducted with young people into their attitudes towards domestic violence indicate that many young people perceive domestic violence as acceptable. Barter et al. (2009) and the NSPCC surveyed 1,353 young people, between 13–17 years from eight schools across England, Scotland and Wales. Their research focused on ‘partner exploitation and violence in teenage intimate relationships’ and covered all forms of intimate relationships or encounters the young people had ever experienced. The findings indicated that ‘some teenage girls, especially those with a history of family violence or with an older or much older boyfriend are at serious risk of harm due to their partner’s violence’ (Barter et al., 2009: 196). Although the ACPO and CPS definition has excluded those under 18 years, in practice if domestic violence is perpetrated by an adult against a young woman under 18 years this should be flagged by the CPS as domestic violence and child abuse. ‘For cases involving perpetrators under the age of 18 years, cases should be flagged as either “young offender” (YO), “persistent young offender” (PYO) and “prolific priority persistent young offender” (PPPYO)’ (CPS, 2009). Although the CPS cross-reference cases involving child perpetrators from juvenile courts to Domestic Violence Officers to ensure appropriate support is accorded to victims, Downloaded by [University of Defence] at 01:45 24 May 2016 the exclusion of young people under 18 years in the shared definition is somewhat misguided and may inadvertently lead to a number of ‘hidden crimes’ in terms of recognising and recording incidents of domestic violence.

Home Office definition Recently the Home Office has come to recognise the significance of the experience of teenagers. Under the Labour government the Home Office conducted the consultation and resultant publication ‘Together We Can End Violence Against 14 Understanding domestic violence Women and Girls’ (HM Government, 2009) and an advertising campaign focusing on abuse in teenage relationships was launched in February 2010. This included a month long (15 February–14 March 2010) show of TV adverts which, aimed at 13–18 year olds, focused on teenage violence and aimed to inform young people about signs and consequences of violence and challenges them to stop violent behaviour and seek support if needed. Further, under the Liberal–Conservative coalition, the Home Office conducted a consultation (14 December 2011–30 March 2012) seeking opinions as to whether the cross-government definition of domestic violence should be widened and whether ‘the current definition is being applied consistently across government, and if it is understood by practitioners, victims and perpetrators’. The consultation considered whether the definition of domestic violence should remain the same, be amended to include coercive control, be extended to all 16–17 year olds or whether it should be extended to all those under 18 years (Home Office, 2011a). As a result of the consultation, in September 2012 the Home Office announced three significant proposed changes to its current definition of domestic violence; the new definition would now i) refer to ‘domestic violence and abuse’, ii) include those aged 16–17 years and iii) acknowledge coercive and controlling behaviour. In February 2013 the definition was published. The Home Office issued circular guidance to the police, the courts, the Ministry of Justice, probation, the CPS and local authorities extending the definition of domestic violence and abuse so that young people aged 16 and 17 years could be included and re-wording the definition to include coercive control:

Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: • psychological • physical • sexual • financial • emotional. Controlling behaviour is: a range of acts designed to make a person subordi- nate and/or dependent by isolating them from sources of support, exploiting their Downloaded by [University of Defence] at 01:45 24 May 2016 resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive behaviour is: an act or a pattern of acts of assault, threats, humilia- tion and intimidation or other abuse that is used to harm, punish, or frighten their victim. (Home Office, 2013)

This is not a legal definition, but it does include so-called ‘honour’ based violence and forced marriage, making it clear that victims are not confined to one gender or Understanding domestic violence 15 ethnic group. In addition the definition acknowledges that domestic violence can take place amongst same sex relationships. This latter inclusion resonates with a recent study which in part sought to explore the nature and extent of same sex domestic violence (Hester et al., 2012). Although the definition is not a legal definition it will be taken seriously by all the agencies concerned being based on a Home Office circular. Failure to adhere to it could form part of a formal complaint or litigation in the courts. The above changes to the Home Office definition of domestic violence appear positive. Not only does the definition include young people, 16 years and over, but it also clearly includes the element of abusive, coercive and controlling behaviour. Such an acknowledgement, that it is not only ‘physical’ incidents of violence which affect those experiencing domestic violence, but also psychological aspects of violence – that coercive and controlling behaviour is a central feature of domestic violence – pays testament to the influence of radical feminist activism and scholarship (see Chapter 2).

Ministry of Justice definition In May 2007 the Ministry of Justice was established to take over the previous Department of Constitutional Affairs and other parts of the Home Office. Although both the Home Office and the Ministry of Justice are government led, the latter has until recently had a different definition of domestic violence to that of the Home Office. The Ministry of Justice has in the past adopted a much narrower definition of domestic violence in particular in its consideration to legal aid services. The Legal Aid scheme had to play its part in helping to reduce the fiscal deficit (Ministry of Justice, 2010: Ministerial Foreword) and it was proposed that legal aid be retained for all domestic violence and forced marriage cases for both legal help and representation, but should not be routinely justified for ancillary relief proceedings and private law family and children proceedings (ibid.: para 4.67). The only people who would get help in future would be those who could show clear objective evidence of the need for protection from on-going physical harm in the form of, for example, an injunction or a conviction against a perpetrator of violence (ibid., emphasis added). Critics pointed out that domestic violence was being defined too narrowly and could mean far more than just ‘physical harm’; overall the belief was that the proposed removal of Legal Aid for some victims was at odds with the Home Office Downloaded by [University of Defence] at 01:45 24 May 2016 policy to prioritise domestic violence (Robins, 2011). The government eventually agreed to widen the definition of domestic violence but made the point that it was less concerned about the definition than evidence that domestic violence had actually taken place. At the same time it removed Legal Aid for those in process of applying for injunctions such as non- molestation orders and forced marriage orders because of the dangers of abuse. A definition of domestic violence was to be included in secondary legislation accompanying the new Legal Aid, Sentencing and Punishment of Offenders Bill as and when it became law. 16 Understanding domestic violence Thus in 2012 a legal statutory definition of domestic violence was agreed upon by the Ministry of Justice and England and Wales now has its first ever legal definition of domestic violence: ‘“domestic violence” means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’ (Legal Aid, Sentencing and Punishment of Offenders Act, 2012, s9 Schedule One para 12.9; for more on this see Chapter 6). The Home Office Circular 003/2013 (Home Office, 2013) has now gone to the Ministry of Justice to supplement their thinking on domestic violence and abuse.

Women’s Aid Federation definition The Women’s Aid Federation has been instrumental in campaigning, raising awareness and providing support for victims/survivors of domestic violence in the UK for the past 40 years. It is a voluntary organisation whose work and commitment is instrumental to the minority of women who do report domestic violence to the police and the majority of women who do not. Since 2007 the Women’s Aid definition has stated that domestic violence is:

Physical, sexual, psychological or financial violence that takes place within an intimate or family type relationship and that forms a pattern of coercive and controlling behaviour. This can include forced marriage and so-called ‘honour crimes’. Domestic violence may, and often does, include a range of abusive behaviours, not all of which are, in themselves, inherently ‘violent’. (Women’s Aid, 2007; emphasis added)

This definition conceptualises domestic violence as ‘gendered behaviour’ in which the main victims of domestic violence are women (and children) and the main offenders are men. This gendered definition is grounded in a wealth of radical feminist research (see Dobash and Dobash, 1992) which evidences the gendered nature of domestic violence. Rather than suggesting an ‘incident’ based definition, as in the case of ACPO and the CPS, Women’s Aid does not refer to an ‘incident’ of domestic violence, rather opting for a feminist informed understanding of a ‘pattern’ of violence. This turns again on what definitions are for. Women’s Aid has a different remit from the police and the Home Office. Women’s Aid recognises that domestic violence is rarely a ‘one off incident’ and Downloaded by [University of Defence] at 01:45 24 May 2016 involves a range of behaviours which can include physical, emotional, psychological, sexual and financial abuse. In this context, it acknowledges the concept of a ‘continuum of sexual violence’ (Kelly, 1988) in which the ‘violence’ perpetrated can include a range of behaviours, for example, name calling, assault, rape and murder. This definition leans away from a criminal justice centred definition towards a more women-centred definition that acknowledges the lived reality of many victims. This point illustrates the significance of the different purposes and origins of definitions that are offered by different agencies. The Women’s Aid definition is based on their extensive work with victims/survivors since the 1970s, Understanding domestic violence 17 whereas criminal justice definitions represent an attempt to apply the categories of largely man-made law to the situations and circumstances in which women more commonly than men find themselves in.

Is domestic violence a crime? Definitions of what constitutes ‘a crime’ are time-bound and differ geographically and culturally. A society’s history, culture, values, religion, political landscape and laws can all contribute to defining behaviour which is considered criminal. In this sense, whether a society names ‘violence against women’ in general, or ‘domestic violence’, ‘coercive and controlling behaviour’, ‘forced marriage’ or ‘honour killing’ in particular, as ‘criminal’ can in part reflect the values held by a society and its tolerance of certain behaviours. Despite the existence of various definitions of domestic violence, this form of violence is still not defined as such in criminal law. Statutory definitions are not indicative of what behaviour constitutes ‘an offence’ rather; they acknowledge and define a range of behaviors as criminal ‘in nature’. Thus despite the Ministry of Justice providing its first ever civil legal definition of domestic violence, domestic violence is not an offence type in its own right. Rather the criminal justice system in England and Wales responds under a range of different laws (see Chapter 3, Box 3.1, page 46). All forms of assault are covered by the Offences Against the Person Act of 1861. Psychological and emotional violence, while included in all of the above definitions of domestic violence, is more difficult to ‘criminalise’ and respond to using a criminal justice framework. The Home Office (2013) definition of ‘any incident or pattern of incidents of controlling, coercive or threatening behaviour…’ is not written into law, only as an administrative circular; at the time of writing the law has not changed as a result of Home Office reforms. As such, while the change in definition is significant in its acknowledgement of coercive control, offenders could not be arrested and prosecuted for ‘domestic violence’ or ‘coercive control’ as neither are criminal offences in the UK. If coercive control amounted to harassment then offenders could be arrested and prosecuted under the Protection from Harassment Act 1997. In addition the Protection of Freedoms Act 2012 created two new offences of stalking by inserting new sections 2A and 4A into the Protection from Harassment Act 1997. The two offences came into force on 25 November 2012 providing further options for pros- Downloaded by [University of Defence] at 01:45 24 May 2016 ecutors to consider when selecting charges (see Chapter 3 for more on this). In England and Wales the Protection from Harassment Act (1997) does recognise psychological abuse as ‘criminal’, as a ‘course of conduct’ crime, but only in situations where partners are not living together. The situation in Scotland differs as the Domestic Abuse (Scotland) Act 2011 amends the Protection from Harassment Act 1997 in cases involving ‘domestic abuse’ and in so doing extends protections available under the Act for those specifically in an ‘intimate personal relationship’ experiencing harassment. The 2011 Act amendments both remove the requirement that there be a ‘course of conduct’ before a non-harassment order 18 Understanding domestic violence may be obtained and also makes it a criminal offence to breach an interdict with a power of arrest (see Chapter 3). In their study Walby and Allen (2004) looked at whether those who experienced domestic violence self-identified the event as a crime. Their findings indicated that

half (51 per cent) of women who had experienced domestic violence (non- sexual threats or force) thought their worst incident was a crime, a third (33 per cent) thought that it was wrong, but not a crime, and 13 per cent that it was just something that happens. (Walby and Allen, 2004: 45)

They further concluded that ‘victims are less likely to call domestic violence a crime than is legally the case’ (Walby and Allen, 2004: 46). The increased crime-centered response to domestic violence in England and Wales over recent years has led to the somewhat misleading message that ‘domestic violence is a crime’; however in reality there is no single offence type of ‘domestic violence’. The message that domestic violence is a crime reflects only that criminal justice agencies are to treat domestic violence as criminal. In the 1990s the requirement to ‘take domestic violence seriously’ and that ‘domestic violence should be treated as seriously as crime committed by a stranger’ was articulated by Jack Straw (Home Secretary). This announcement was telling in its message, but also in its admission that domestic violence had not been taken seriously previously. Perhaps the most significant recent policy development in England and Wales which demonstrates the government’s continued commitment to tackle domestic violence is the Domestic Violence, Crime and Victims Act (2004). Amended in 2012 the Act provides renewed focus for the criminal justice system aiming to improve support and protection offered to women experiencing domestic violence and to provide the police and courts with powers to deal more effectively with offenders. Common assault and the breach of a non-molestation order are now arrestable offences (Musgrove and Groves, 2008). As Hoyle and Zedner (2007) point out, the focus of the Act is to provide the police with more powers to arrest alleged perpetrators of domestic violence than previously known. Developments in the criminal law and Home Office policy in part are reflective of successive governments’ recognition of the criminal nature and serious impact of domestic violence. Research suggests that the challenge for criminal justice practitioners to implement such an amalgam of law and policies is only partially Downloaded by [University of Defence] at 01:45 24 May 2016 being met. At best it was never anticipated that the law and criminal justice itself would be more than a partial solution to the issue. Evaluations conducted into the implementation of police policies by Grace (1995) found that Circular 60/1990 (Home Office 1990a) was generally implemented but was patchy and that practice did not match policy. Plotnikoff and Woolfson (1998) similarly found inconsistency between policy and practice commentating on poor coding and inappropriate follow-up due to poor police training and officers’ attitudes. This led to the more detailed circular 19/2000 (Home Office, 2000a). Humphreys and Thiara’s (2002) survey of 200 women in refuges found that 30 per cent were dissatisfied with the Understanding domestic violence 19 police response. However, more recently Musgrove and Groves’ (2008) reflection on the relevance to survivors of the Domestic Violence, Crime and Victims Act 2004 found that 41 of the 54 respondents who had contacted the police had been dealt with ‘sensitively’ and 27 of those said that they would seek help from the police again (see Chapter 4 for more on this).

The nature and extent of domestic violence Domestic violence is a widespread, everyday phenomenon in higher and lower income countries alike, that cuts across boundaries of class, age, race, ethnicity and sexual orientation (McCue, 2008); domestic violence ‘pervades through all socioeconomic, gender and cultural boundaries’ (Keeling and Mason, 2008: 2). Women may experience domestic violence regardless of age, class, race, ethnicity, culture, disability and sexuality and in parallel men who commit domestic violence similarly come from a diverse range of backgrounds. The experience of domestic violence may differ as a result of these different contexts.

The gendered nature of domestic violence The majority of research in England and Wales demonstrates the gendered nature of domestic violence; the vast majority of perpetrators are men, and the majority of victims are women (and children). While both men and women may experience domestic violence, findings from the intimate personal violence (IPV) section of the Crime Survey for England and Wales describe gender as a ‘significant risk factor’ for domestic violence with findings consistently demonstrating that women are more likely than men to experience domestic violence, especially sexual violence, and are more likely to experience severe and/or repeated violence (see Walby and Allen, 2004). Similar findings are found in Scotland. The 2000 Scottish Crime Survey found that men were less likely to have been repeat victims of domestic violence, less likely to be seriously injured and less likely to report feeling fearful in their own homes (Scottish Executive Central Research Unit, 2002). Further, the follow-up to the Scottish Crime Survey conducted by Gadd et al. (2002) found that male victims’ reports of domestic violence were exaggerated because over one in four male respondents misunderstood the question in the self-completion section of the Crime Survey (Gadd et al., 2002: vii). Feminist research further demonstrates gender differences in the motivations Downloaded by [University of Defence] at 01:45 24 May 2016 for violence. Gaining and maintaining ‘power and control’ is cited as a reason for men’s violence against women; when women are violent to male partners the motivation is more often one of fear, anger, protection, resistance and self- defence (Griffiths, 2000). Domestic violence can occur in a range of intimate partner relationships including heterosexual, lesbian, gay, bisexual and transgender (LGBT). The phe- nomena of same-sex domestic violence remains largely hidden as the majority of research in the UK has focused on the nature of domestic violence in heterosexual relationships. Recent research which has been conducted (Ristock, 2002; 20 Understanding domestic violence Henderson, 2003; Donovan et al., 2006; Donovan and Hester, 2007) into LGBT communities tends to be on a small scale and not based on specific definitions of domestic violence. Despite these limitations, studies have found that experiences of domestic violence are similar for lesbians and gay men, but that gay men are significantly more likely to experience physical and especially sexual violence, while lesbians are significantly more likely to be affected by emotional and sexual violence (Donovan and Hester, 2007). Other studies confirm similar patterns and that ‘gay men tended to experience domestic violence from male perpetrators, and lesbian or bisexual women experienced domestic violence from both female and male perpetrators’ (Hester et al., 2012: 28).

Physical violence Domestic violence can manifest itself in primarily three main ways, as physical, sexual and psychological violence. Physical violence can include being spat at, punched, slapped, hit, kicked, pushed, shoved, burnt, hair pulled, beaten, cut, stabbed and strangled. It can involve the use of weapons, e.g. knives and guns, or of everyday objects which can be used as weapons, e.g. cigarettes, hot pans, hot irons, knives, scissors and furniture. If a woman is disabled and her partner is physically abusing her then this could include a range of behaviours. Hague et al. (2008) carried out the first national UK study of the needs of disabled women experiencing domestic violence and of services available to meet these needs. Experiences included being ‘forced onto the stairs or floor and left there, unable to move’, having the ‘wheelchair moved out of reach’ and being ‘thrown across the room’. A recent study with a sample of 62 disabled women in Glasgow found that 73 per cent had experienced domestic abuse and women cited that

reliance on abusers as carers, financial abuse, neglect, family and services’ unwillingness to believe ‘a carer’ was capable of abuse, lack of alternative accessible housing and fear children would be removed were influencing factors in women’s decisions to leave. (Wise Woman, 2010: 4)

Sexual violence Downloaded by [University of Defence] at 01:45 24 May 2016 Sexual violence is part of the rubric of domestic violence and although in UK law it is treated as a separate crime, e.g. rape, it is a common aspect of domestic violence; it was not until 1991 that rape within marriage was deemed a criminal offence within the UK. Sexual violence describes not only rape but a wide range of sexual behaviours in which the victim is humiliated, degraded, coerced or forced. To illustrate, it can involve forcing a woman to have sex with others, forcing her to have sex in front of her children, forcing her to watch/engage in pornography, uploading sexual material onto the internet without her permission and forcing the use of objects during sex. Some women’s experience of domestic Understanding domestic violence 21 violence may include being forced into prostitution by a boyfriend (Hester and Westmarland, 2005). In the domestic violence context, ‘sexual violence is often linked to physical violence, often perpetrated immediately after a physical assault and commonly accompanied by verbal violence’ (Johnson, 1995, cited in Harne and Radford, 2008: 4). For those who have been forced to marry, sexual violence can become an everyday reality.

Psychological violence Psychological violence may include a range of coercive and controlling behaviours, strategies and tactics used by the perpetrator as an expression of power and control over the woman; psychological violence may include coercion, control and isolation. The perpetrator may control what the woman does, e.g. limits her seeing/ contacting friends, controlling who she rings, emails, her Facebook page; determining whether and when she can attend college, university, work, the gym; preventing her from leaving the house, timing her trips to the shops or to pick the children up from school, monitoring car mileage to check that she comes ‘straight back’. Denying, minimising and trivialising the physical violence can also be seen as psychological violence and can lead the woman to believe in ‘distorted perspectives’. This may involve the perpetrator constantly telling the woman that the violence is her fault, that if she ‘did what she was told’ that the violence would stop or perhaps normalising the violence by saying that ‘all relationships have their ups and downs’. A tactic that may also be used in controlling relationships is using ‘occasional indulgencies’ which can serve to confuse the victim and give her hope that the perpetrator or relationship may change for the better (see Duluth Wheel, Pence, 1987). In looking at psychological violence and in particular ‘coercion and control’, the question has been asked ‘whether outside the context of this violence, such coercive and controlling behaviours constitute “violence” in (its) own right’ (Harne and Radford, 2008: 6). To some extent, this debate appears to have come to a head in recent years. While the radical feminist approach to domestic violence has clearly articulated the physical, sexual and psychological nature of domestic violence for the past 40 years, the psychological aspect has been somewhat side- lined by criminal justice practitioners, faced with a crime-centred model unable to respond to psychological violence. Recent developments suggest a more overt and public acknowledgment of coercion and control as violence. Downloaded by [University of Defence] at 01:45 24 May 2016 We noted above how the Home Office consultation (Home Office, 2011a) has contributed to the Home Office explicitly including ‘controlling and coercive behaviour’ in its definition of domestic violence (Home Office, 2013). During this time, the publicly reported arrest and conviction of comedian Justin Lee Collins on domestic violence related offences in which evidence was presented to illustrate his controlling behaviour gave a public face to coercive and controlling behaviours (Westcott, 2012). Research for Scottish Women’s Aid highlights the significance of domestic abuse as ‘everyday terrorism’ (Pain, 2012). 22 Understanding domestic violence Patterns of domestic violence While domestic violence can occur at any point in a relationship research does indicate that there are some points in a relationship where a woman is at more risk to a man’s violence than at other times, e.g. when a relationship becomes ‘formalised’ in some way, such as starting to live together or getting married (see Pahl, 1985; Hester and Radford, 1992; Kelly 1988). Pregnancy has also been identified as a dangerous time for women experiencing a violent relationship. McWilliams and McKiernan (1993) found that in 30 per cent of cases the domestic abuse first started when the woman was pregnant and domestic violence has been identified as a prime cause of maternal deaths during childbirth (Lewis and Drife, 2001; Lewis and Drife, 2004). The point of separation can also be a particularly dangerous time for women. It is often assumed that if a woman leaves her violent partner that he will stop being violent towards her, thus the question ‘why doesn’t she leave?’ Women’s experience suggests this assumption is misplaced. There are numerous examples where women and children have been killed by their violent partner after leaving. In the UK approximately two women a week are killed by a current or former partner (Povey, 2005).

[T]he period during which a woman is planning or making her exit is often the most dangerous time for her and her children. Many women are frightened of the abuser, and with good reason, as it is not uncommon for perpetrators to threaten to harm or even kill their partners or children if she leaves. (Women’s Aid, 2006)

Successive British crime surveys illustrate that those experiencing domestic violence are more likely to experience repeat victimisation than victims of any other types of crime. Assuming that domestic violence includes not just physical (and sexual) acts of violence but also coercion and control, the repeat nature of ‘everyday’ violence cannot be underestimated.

The extent of domestic violence Measuring the true extent of crime and the challenges this poses to criminal justice agencies and academics and politicians alike is a debate that is well rehearsed within mainstream criminology. In parallel, over the past 40 years feminist

Downloaded by [University of Defence] at 01:45 24 May 2016 research has been fundamental in attempting to highlight the ‘true’ extent of domestic violence in particular and violence against women in general. It is suggested that domestic violence is notoriously underestimated due to underreporting by victims and under recording by agencies within the criminal justice system. Research suggests that only 35 per cent of domestic violence incidents are reported (Bolling et al., 2002). In contrast, Stanko (2001) found that the police get one call about domestic violence every minute in the UK, making an estimated 1,300 calls each day or over 570,000 each year. More recent statistics, published by Labour to highlight ‘International Day for the Elimination of Violence against Understanding domestic violence 23 Women’ (2012) suggest that 1 in 8 emergency calls to the police are for domestic violence (Dugan and Merrick, 2012). This chapter has established that there is no single statutory definition of domestic violence in the UK and as such measuring the extent and prevalence of domestic violence presents a real and practical challenge. Differing definitions can lead to data collection and methodological challenges for those tasked with collecting and collating domestic violence data. This can contribute to difficulties in assessing the true extent and prevalence of domestic violence, information which in turn can inform practitioners and policy makers responsible for providing services and resources appropriate to the nature and extent of victim’s needs. As the definitions and very nature of domestic violence make it difficult to accurately assess its true extent it is useful to consider a range of research findings. The Crime Survey for England and Wales (previously known as the British Crime Survey) can respond in part to the challenge to measure the true extent of domestic violence it aims to measure crime by asking approximately 47,000 people about crimes they have experienced in the previous year and includes unre- ported crime. Statistics from the Crime Survey for England and Wales 2011/12 estimated that 1.2 million women and 800,000 men experienced domestic abuse in the last year (Office for National Statistics, 2013). It further estimated that approximately 392,000 of these incidents were violent, a figure 35 per cent higher than in 2010 (Dugan and Merrick, 2012). The Crime Survey for England and Wales gives some indication of the extent and prevalence of domestic violence but the statistics may underestimate its extent due to a number of factors associated with data collection methods and the nature of domestic violence itself. Several critiques have been levelled at the British Crime Survey. First, the BCS has been traditionally based on interviews with adults 16–59 years of age – so domestic violence against younger people under 16 years and against older women was excluded. In 2006, two independent reviews into the BCS were conducted by the Statistics Commission and Professor Adrian Smith. As a result, one of the subsequent recommendations was that the BCS should be extended to include the experience of those children less than 16 years. The Children’s Society welcomed proposals to extend the inclusion of children under 16 years within the remit of the British Crime Survey and suggested that children/ young people’s experience of domestic violence should be included (Pona, 2008). In January 2009 the BCS was extended to include young people under the age of 16 years; domestic violence against older women is still excluded. Downloaded by [University of Defence] at 01:45 24 May 2016 A second critique is linked to the notion of ‘incidence’ and ‘patterns’ of domestic violence. Due to the way the BCS is constructed it is only possible for a maximum of five crimes per respondent to be recorded. Such a measurement tool can result in a serious underestimation of the extent of domestic violence (Farrell and Pease, 2007). If it is accepted that an incident based approach is limited in scope and that domestic violence is rarely a one off incident, then a ‘limit’ of five crimes per respondent may be inadequate in capturing the true extent of victims’ experience of domestic violence. This suggests that there is insufficient scope in the British Crime Survey to record the real pattern and repeat nature of domestic violence. 24 Understanding domestic violence A third critique is related again to data collection methods and the nature of domestic violence. While the use of a self-completion questionnaire suggests that respondents are more likely to give an accurate representation of their experiences it may be the case that a victim has not self-identified their experience as violence. The everyday coercive control that victims may experience is not always self- identified as domestic violence. Some victims completing the questionnaire may be in a state of ‘self-blame’ making it difficult for them to admit their experience on the questionnaire. Women are also unlikely to report domestic violence incidents, even with the self-completion methodology, if the perpetrator is present in the home. Another critique of the British Crime Survey is that it excludes women stay- ing at refuges because it only includes people living in their own homes. Crimes against minority ethnic people are also underestimated for all offences – so this will include domestic violence in minority ethnic communities. Some men have been found to exaggerate their experiences of being crime victims and even lying on the self-completion element (Gadd et al., 2002). Non-governmental research provides a further indication of the extent of domestic violence. Women’s Aid conducts annual research through a census which provides a snapshot of the number of women and children seeking support from domestic violence on the census day. The 2011/12 Women’s Aid Annual Survey suggests that an estimated 19,510 women and 19,440 children are supported in refuge-based services on a typical day. In addition it found that approximately 139,100 women and 19,145 children and young people were directly supported by outreach and other non-refuge services by domestic violence organisations during the year 2011/12. These figures obviously reflect those who have reached a formal stage in the help-seeking process. As a consequence of all the methodological issues it is likely that the full extent and prevalence of domestic violence remains unknown and unknowable; a hidden figure.

Summary: challenges to a criminal justice response This chapter has given a brief overview of the nature and extent of domestic violence and has focused on issues of definitions and naming. It has been noted by some that ‘returning to definitional issues in the domestic violence field can sometimes seem like a backward step’ (Williamson, 2010: 141). This chapter has Downloaded by [University of Defence] at 01:45 24 May 2016 argued that it is useful to address definitions and terminology as it reflects the hidden politics and power behind the process of naming. In addition it further suggests contradictions in the way domestic violence is defined and named by researchers and activists, government departments, criminal justice and voluntary agencies, victims and perpetrators. The emotional, practical and theoretical challenges facing all those who wish to name and speak out about violence cannot be underestimated. 2 Explaining domestic violence

Introduction In the twenty-first century domestic violence is widely accepted as a global social problem, but as detailed in the previous chapter, controversies still exist in relation to naming and defining domestic violence. These controversies continue in attempts to theorise and explain why domestic violence occurs and to identify who are the main victims and perpetrators. Although there have been leaps and bounds in empirical research into domestic violence since the 1970s, it is argued that theoretical development has trailed behind. As McKie (2006) and Ray (2000; 2011) have argued, mainstream sociology and sociological theory have been much concerned with analysing social conflict, but much less so the specifics of domestic violence (cited in Hearn, 2012). This chapter looks at a range of theorising from both the UK and US, developed to understand domestic violence, which co-exist and are at times contradictory (see also Hearn, 2012). Over the past 40 years several explanations rooted in a range of disciplines have been suggested to identify a cause of domestic violence. Psychological explanations have focused on the individual and have looked at either the perpetrator or victim’s psychological make-up in attempts to explain its cause. Based on developmental and personality theories they suggest inter-related factors as the cause, i.e. early abuse, personality disorders. Such explanations suggest that violence is the ‘behaviour of a few sick or psychologically deranged men’ (Maynard, 1993: 109), an assumption which sits uneasily with headline statistics showing 1 in 4 women experience domestic violence at some point in their lifetimes. Additionally, these theories are critiqued for failing to explain the

Downloaded by [University of Defence] at 01:45 24 May 2016 gendered nature of domestic violence, why some men without obvious pathol- ogy are violent towards women and why most men abused as children do not go on to abuse their partners (Barnish, 2004). Such theories have been overly simplistic in their analysis of victims and have pathologised the victim, suggesting that there is something ‘wrong’ with the woman who ‘chooses’ a violent partner and that in some way she is ‘asking for it’ or ‘likes the violence’ otherwise she would leave. Radical feminist critiques point out that no one ‘deserves’ to be abused, that such theorising ignores patriarchy and that women may not initially know that a man uses violence and that leaving a violent relationship is not a simple option. 26 Explaining domestic violence Social and learning theories have looked at the process of socialisation and how different experiences of ‘growing up’ can contribute to the likelihood of domestic violence occurring. Such explanations focus on the social context in which domestic violence takes place and the norms and attitudes attached to violence in these contexts. These theories look at social differences such as class, ethnicity, religion, age, sexuality or culture for example to explain why domestic violence and its various forms occur. Several myths and stereotypes associated with these divisions can often be located in such explanations. Similarly learning theories look at violence as learned behaviour, leading to suggestions of a ‘cycle of violence’. Such theories are critiqued for ignoring the complexity of domestic violence and failing to explain why most children do not grow up to perpetrate violence or equally why the majority of existing perpetrators did not experience domestic violence as children. Such determinist explanations have also been critiqued when looking at female victims; ‘none of the studies have established cause and effect between past and present’ (Mullender, 1996: 41). The family violence approach has looked at interpersonal relations and the radical feminist approach has addressed domestic violence in its broader analysis of violence against women. It is the latter two approaches and associated concepts and debates that this chapter highlights.

Radical feminism Over the past 40 years, both nationally and internationally, radical feminism has had a profound effect on explaining violence against women. The radical feminist approach is instrumental in pointing to the nature of violence against women as a gendered problem and focuses not just on a single category of violence, such as domestic violence, but rather it recognises the interconnectedness and plurality of violences perpetrated by men against women and children. This is notably exemplified by Kelly’s concept of a continuum of sexual violence which encap- sulates how a range of violences can be connected with men’s power at the core (Kelly, 1988). Reflective of the adage ‘the personal is political’, radical feminism addresses male domination and the gendered oppression of women through a theoretical approach which fundamentally goes hand in hand with activism. Such activism is reflected in the UK by non-governmental organisations and campaign groups such as Women’s Aid, Domestic Violence Intervention Project, Rape Crisis, Broken Rainbow, The Zero Tolerance Trust, Southall Black Sisters and Downloaded by [University of Defence] at 01:45 24 May 2016 Justice for Women. The concept of patriarchy is instrumental to radical feminist explanations of violences against women. Familial in conception, patriarchy originates from the Greek ‘patriarkhia’, meaning ‘ruling father’. The radical feminist concept of patriarchy is best encapsulated by Radford (2013: 362):

In the traditional notion of ‘rule by the father’, its gender dimension facilitates understanding of the power of men over women, and its generational element – power hierarchies between men, between women and Explaining domestic violence 27 over children. The generational dimension of patriarchy further provides a framework for understanding difference and change through time, at both societal and individual levels. This accords dynamism to the concept of hierarchy, enabling analysis of continuity, difference and change through time and between societies.

In this sense, patriarchy facilitates understanding the gendered dynamics of domestic violence and its asymmetrical nature in which the majority of victims are women (and children) and that the majority of offenders are (known) men. Radical feminists do not claim that all men have more power or more control over all women but that generally men have the presumed ability to be in control either at a societal or individual level, ‘legitimately’ or through their use of violence. Men’s violence against women on an individual level is a last resort, when other forms of societal controls of women and children are perceived as failing. The familial and generational model of power also recognises hierarchies amongst women and amongst men. As such, the concept of patriarchy can account for same-sex domestic violence and can be used to account for women’s violence against men. The radical feminist approach acknowledges that the forms taken by patriarchy are different between different cultures and change across history – rule of the father is recognised as taking very different forms in different societies and subcultures within societies. Radical feminist theory/activism is accredited with being fundamental to developing understanding and shaping both the criminal and non-criminal response to domestic violence in the UK. Scholars and activists continue to be key players in the process of raising awareness of the nature and extent of domestic violence, challenging myths and stereotypes and conceptualising domestic violence as not solely a private issue but one of public concern. Instrumental in raising the profile of the criminal nature of domestic violence and other violences against women such as rape within marriage (1991), radical feminism is not limited to a crime centred analysis of violence against women. Radical feminists have always argued that while necessary both symbolically and practically, criminal justice responses cannot provide a complete response to domestic violence and that a multi-agency response best serves the needs of survivors/victims (see Chapter 7). Radical feminism refers to the plurality and interconnectedness of violences perpetrated by men against women and children; it is the law and criminal justice practitioners who fragment violence against women into offence categories such Downloaded by [University of Defence] at 01:45 24 May 2016 as domestic violence, rape, harassment, stalking. Radical feminism has a significant impact on criminology in highlighting the gendered and familial nature of violence experienced by women and children. It names the perpetrators not as ‘strangers’ but as ‘known’ men, as partners, husbands, fathers, uncles and grandfathers; as fellow students, ‘friends’ or work colleagues. It further exposes the extent of women’s victimisation and contributes to ‘improving the treatment of female survivors’ by the criminal justice system while simultaneously pointing to ‘law as a patriarchal institution reflecting and reproducing male dominance’ (Radford, 2013: 363). In this sense ‘radical 28 Explaining domestic violence feminism offers a systematic analysis of the nature of women’s oppression, including the ways in which it is sustained through law and criminal justice processes’ (Radford, 2013: 361) which historically has condoned violence against women by failing to act against it. While the criminalisation of domestic violence has undoubtedly set the record straight in terms of denoting behaviour that is morally, socially and culturally unacceptable, radical feminism has exposed important unintended consequences of the crime centred approach. Scholars have demonstrated the multiple difficulties women face in perceiving their own everyday lived experiences as in some way ‘criminal’, although most victims do recognise that physical violence including rape and sexual assault is criminal (Kelly and Radford, 1990; Walby and Allen, 2004). Empirical research in the 1980s and early 1990s overwhelmingly documented the barriers victims experienced in terms of reporting violence and the ‘rocky road’ that might then ensue if the criminal justice route were proceeded with. Research suggests that inconsistency in arrest rates, recording practices and prosecution of offenders between forces, and high attritions rates all contribute to ‘the justice gap’ (Hester et al., 2003; Hester, 2006). In parallel, research documented the failings of criminal justice practitioners, in particular policing, in not taking domestic violence seriously, and where they did, in not providing the most appropriate response to victims (Pahl, 1982). Studies revealed victim-blaming attitudes of officers (Hanmer and Saunders, 1984; Radford, 1987), negative, racist and sexist police views (Mama, 1996) and documented numerous cases of domestic violence being recorded as ‘no crime’ in incident logs (Edwards, 1989). There is little wonder that there were high rates of women underreporting their experience (Bolling et al., 2002) and that women felt ashamed (Hough and Mayhew, 1985: 21) and to blame (Dobash et al., 1985: 152–3). Although it has been suggested that there was a ‘U turn’ (Harne and Radford, 2008: 121) in the policing of domestic violence in the late 1980s/early 1990s (evi- denced by Circular 60/90 (Home Office, 1990a) which advised police to treat domestic violence as violent crime), studies still revealed that despite progress at a policy level, criminal justice practice could be seen to fall short. Policy implementation was patchy (Grace, 1995); pro-arrest policies were not always implemented by the police (Hoyle, 1998) and Kelly (1999) suggested that it was a ‘lottery’ as to the response some women received as some officers still regarded domestic violence as ‘trivial’. These research findings suggest resistance on the part of police and criminal justice practitioners through the 1990s. While the relatively recent Downloaded by [University of Defence] at 01:45 24 May 2016 introduction of Specialist Domestic Violence Courts (SDVCs), Multi Agency Risk Assessment Conferences (MARACs) (Robinson, 2004; 2006) and Independent Domestic Violence Advisors (IDVAs) (Coy and Kelly, 2011) has impacted on criminal justice practice today, those seeking a criminal justice response still face challenges. In acknowledging these challenges and the limitations of relying on a crime centered response alone the radical feminist approach advocates a multi- agency response, one which is explored in greater detail in Chapter 7. Despite the depth of theoretical understanding, the scope and significance of empirical research and the practical support that can be attributed to radical Explaining domestic violence 29 feminism, this approach is not without its critiques and it is not the only model of explanation worth considering. In the UK and US the radical feminist model has been scrutinised. In some cases it is directly challenged and contested by other theoretical approaches such as ‘family violence studies’ (US) and in other instances theoretical approaches build upon radical feminist understandings for example the ‘intersectional approach’ (see Thiara and Gill, 2010) (UK and US) and the conceptualisation of ‘coercive control’ in the United States (Stark, 2007). As Chapter 1 indicated, terminology and naming is important in terms of defining domestic violence and its various forms. This chapter will illustrate that as part of the politics of recognition of domestic violence ‘different namings, framings and definitions feed into and suggest different explanations that are more or less gendered and/or intersectional’ (Hearn, 2012: 159). Below we explore some of the critiques of radical feminism and some of the alternative models and theoretical approaches variously used to conceptualise and theorise domestic violence.

Critique of the concept of patriarchy An often posed critique of radical feminism is the use of the concept of patriarchy as an explanatory and theoretical tool. In laying the cause of domestic violence at the door of gender oppression rooted in patriarchy radical feminism has been accused of being too deterministic, essentialist and reductionist. The most common critiques of the use of patriarchy are listed by Hunnicutt (2009: 554):

1 the term implies a ‘false universalism’ 2 it is ‘reductionist’ as it assumes all men represent a unitary group 3 it does not account for women’s violence against men 4 it does not account for violence within same-sex relationships 5 it does not explain why all men living in patriarchal societies are not violent (Dutton, 1994) 6 it simplifies understandings of power hierarchies and relations 7 it is ‘essentialist’ in its assumptions about gender relations and social structures.

The above critiques of radical feminism’s use of the concept of patriarchy are simplistic and misplaced. As the above exposition of radical feminism highlights, the concept of patriarchy does not claim to be universal; rather it recognises Downloaded by [University of Defence] at 01:45 24 May 2016 the cultural and historical specificities of different forms of patriarchies and women’s resistances to it, see (i) above. Indeed, more recent feminist inspired theorising has conceptualised the notion of transpatriarchies (Hearn, 2009). Women’s resistance is a central aspect of radical feminist theory/activism. Lewis (2004) argues that women’s response to and negotiation of domestic violence and the criminal justice system can be seen as an example of Kandiyoti’s (1988) ‘patriarchal bargains’. A simplistic understanding of patriarchy leads to a misplaced understanding that assumes all men as a ‘class’ or ‘unitary group’ yet a more nuanced 30 Explaining domestic violence understanding acknowledges hierarchies and differences amongst men (ii). The concept of patriarchy can also accommodate theoretical exploration of women’s violence against violent men. Although women’s violence has not been the primary focus of theorizing and activism, there is clear evidence of radical feminist theoretical and practical engagement with women who abuse men within patriarchy (iii). As Kelly states:

The insecurity that many feminists and/or lesbians experience when begin- ing to address women’s use of violence reflects a profound concern that it will undermine feminist analysis of both sexual violence and heterosexuality. But feminist theory is not that fragile… A feminism which begins from understanding gender as a social construct, which recognizes the variability with which gendered selves and individual biography combine, can locate women’s use of violence within its existing framework. (Kelly, 1996: 36–7)

In the UK, activist groups such as Justice for Women and Southall Black Sisters campaign for improvement of services and in the law to support victims of gendered violence. Such campaigns include seeking justice for women who have fought back against and in some instances killed their violent partners. The notion of patriarchy which acknowledges hierarchies amongst women can also account for violence within same-sex relationships (iv). For example, existing knowledge suggests that lesbians’ ‘lack of social power compared to that of hetrosexual men provides a different context for conflicts which can sometimes lead to violence’ (Harne and Radford, 2008: 16). The critique that it does not explain why all men living in patriarchal societies do not use violence again is misplaced (v). Does such a critique imply all men are violent all of the time? If so, how would heterosexuality persist? A radical feminist approach which centres on patriarchal understandings argues that systems of male power contribute by condoning violence against women; that men use violence to uphold male power, either on a societal or individual level. Men who use violence against women on an individual level do so when other forms of control are perceived as failing. The claim that patriarchy simplifies understandings of power hierarchies (vi) is incorrect and is based on simplistic misrepresentations of radical feminism. In response to the critique some feminists have developed more nuanced conceptu- Downloaded by [University of Defence] at 01:45 24 May 2016 alisations of patriarchy. Hunnicutt (2009: 559) points out that:

When patriarchy is used simplistically, it obscures the complexity of gender systems, rendering them inevitable and universal. However, if a theory of patriarchy is constructed that theorizes about variation, it has the potential to illuminate different forms of male domination.

Hunnicutt (2009: 564) argues that patriarchy is a useful tool when it is acknowledged that men and women hold multiple sites of power – ‘terrains of power’ Explaining domestic violence 31 (Flax, 1993) – and that a ‘theory of varieties of patriarchy’ can help explain how patriarchal systems ‘play out’ in gender specific ways. Hunnicutt (2009: 526) suggests that a concept of ‘varieties of patriarchy’ can develop an understanding of the multiple dynamics of different gendered relationships – men’s violence against women, why some women do commit violence (linked to system of domination, submission and resistance) and also why most women commit so little violence within patriarchy.

The Duluth Wheel A widely used analytical model, informed by radical feminism, is the ‘Duluth’ or ‘Power and Control’ Wheel (Pence, 1987). ‘The power and control wheel is an analytical model developed by the Domestic Abuse Intervention Project, Duluth, Minnesota, USA to illustrate the power dynamics of domestic violence and how it constitutes an overall pattern of (male) power and control’ (Harne and Radford, 2008: 7). This model further illustrates why not all men need to use violence all of the time to enforce their control – rather it is a last resort strategy drawn on when other power bases are undermined or not available to them. The Wheel illustrates that domestic violence is not to be understood merely in terms of physical and sexual assaults, but that it also includes psychological violence. The psychological or emotional violence can be particularly revealing to women who have not experienced physical violence, but who have experienced emotional manipulation or controlling behaviour at the hands of their partners. The subtleties of intimate relationships may be familiar to many of us. In the context of a violent intimate relationship, such subtleties can be profound. The Wheel can ‘reveal’ a pattern common to women’s experience of violence which initially may have been interpreted as an individual, non-violent, everyday ‘norm’. Scholars have referred to a range of intimidating and controlling acts as ‘emotional abuse’, ‘psychological abuse’, a ‘constellation of abuse’ (Dobash and Dobash, 2004: 328) and others more recently to ‘coercive control’ (Stark 2007; 2009). These acts are not necessarily inherently violent – men may control women by isolating them from people or places that they could look to for support, prevent them from phoning, texting, emailing, using Facebook, tweeting, seeing friends and family, from going to work, the gym, or university for example. The Duluth Wheel enables us to view these acts as part of a larger rubric of violence and Downloaded by [University of Defence] at 01:45 24 May 2016 abuse motivated by a man’s decision to exercise power and control. There is a real debate here – particularly whether in the absence of physical violence or its threat, these tactics have any purchase, i.e. the role of threats are usually denied in claims that there’s been actual violence, but credible threats of violence in law are treated as violent crime (e.g. threats to kill are criminalised in the Homicide Act 1957). A crime centred response focuses on the criminal elements of domestic violence – usually murder, sexual offences, violence against the person, unlawful imprisonment, threats and criminal damage or harassment, as these are offences accommodated within existing law provision. Women’s lived experience, the 32 Explaining domestic violence Duluth Wheel and prevailing ideology suggests that emotional abuse is as significant, if not more so, as its physical counterpart, yet a man would not be arrested for emotional abuse (if not accompanied by threats of violence), for preventing his partner from going out with friends, for controlling what she eats and wears. Despite the Duluth Wheel visibly showing all aspects of domestic violence, the non-violent nature of domestic violence is outside the remit of the criminal justice system. However, feminists have been successful in getting grievous psychological violence recognised in criminal law. An instance where psychological or emotional abuse is categorised as criminal is usually dealt with under the Protection From Harassment Act 1997 such as the Justin Lee Collins case (Morris, 2012). Hearn (2012: 158) argues that:

Significantly, there are often close parallels between men’s accounts of their own violence, and how men have often developed social theory. Violence is constructed as occurring in ‘incidents’, as ‘incidental’; it is incidentalized. Instead there is a wide range of violences and violations, including degra- dations, threats and controls. Moreover, the more violence, the less those actions are likely to be perceived as violence; and the more physical violence, the less there may be need for such violence to maintain control.

Gender symmetry Dobash and Dobash (1992: 258–84; 2004: 326) have argued that the two main theoretical approaches to research into domestic violence can be characterised as ‘family violence’ and ‘violence against women’. Both theoretical approaches have different conceptualisations regarding the gendered nature of domestic violence. The violence against women approach, aligned with radical feminism, suggests domestic violence is asymmetrical in nature, while the origins of gender symmetry can be located in the family violence approach which claims that men and women are likely to be equal perpetrators of domestic violence. Such claims have variously been debated in popular and academic arenas since the 1970s. The gender a/symmetry debate and research into ‘who does what to whom’ (Hester, 2009) parallel wider criminal justice debates surrounding female offending in general. The ‘search for equivalence’ and claims that women are becoming increasingly violent, or that ‘girls can do it too’, are perhaps more commonly recognised in female offending debates regarding supposed increases in girls’ violence and the Downloaded by [University of Defence] at 01:45 24 May 2016 media myth surrounding their involvement in girl gangs (see Batchelor, 2001; 2009). In the domestic violence arena these debates have been taken up by radical feminist scholars and activists who have explored the role, nature and context of women’s use of defensive violence, with campaign groups such as Justice for Women and Southall Black Sisters calling for changes in the law to recognise the unique circumstances of women who kill violent men (see Griffiths, 2000). Most activists, academics and agencies agree that most commonly victims of domestic violence are women and perpetrators are men, but do acknowledge that violence can be the other way round (e.g. Gadd et al., 2002). In 2009/10 in England and Wales, 94 women and 21 men in Explaining domestic violence 33 heterosexual relationships were killed by a partner, ex partner or lover (Smith et al., 2011). The violence against women approach challenges notions of equivalence, not in the sense that women never engage in domestic violence, but that when they do, it may often be in self-defence, resistance, retaliation or to protect themselves (or their children) or out of fear and anger (Griffiths, 2000; Edwards, 2010). Claims that girls and women are equally capable of being violent represent a double edged sword – at once proclaiming girls and women’s agency but also attracting a response suggesting ‘equality with a vengeance’. While criminological theory accepts that women do engage in all types of offences (except rape) it is universally accepted as given that men are the main offenders of crime and that criminological theory should address this (Braithwaite, 1989). This ‘truism’ has not been disputed in theorising a whole range of criminal behaviour i.e. murder, rape, assault, theft, yet when considering domestic violence, men as the main offenders appears to have been consistently questioned over the years. Notions that ‘women do it too’ have held steadfast. The proponents of gender symmetry, primarily those researching from a family violence perspective, commonly measure domestic violence (psychological and physical attacks) using the Conflict Tactic Scale (CTS). This scale is essentially a list of items or acts intended to measure abuse, which are then used to measure conflict. This ‘act based’ approach to measurement determines men and women’s involvement in domestic violence by measuring their self-reported involvement in discrete, individual acts of violence, i.e. punch, slap, kick, push. Such an act based approach to measurement leads to a concept of violence which is primarily physical in nature. In practice terms, parallels can be drawn with the criminal justice system ‘incident’ based approach to intervention. While Dobash and Dobash (2004: 329) acknowledge that the CTS presents a certain level of reliability (Archer, 1999) they, and others have primarily questioned its external and theoretical validity (see Szinovaz, 1983; Browning and Dutton, 1986; Margolin, 1987; Dobash et al., 1992; Kurz, 1993; Dobash et al., 1998). In response, in the 1990s the Conflict Tactic Scale I (CTS1) was revised and the Conflict Tactic Scale II (CTS2) was developed. Both scales are based on conflict theory which ‘assumes that conflict is an inevitable part of all human association, whereas violence as a tactic to deal with conflict is not’ (Straus et al., 1996). It is argued that the CTS2 differs from CTS1 in that

the CTS2 has Downloaded by [University of Defence] at 01:45 24 May 2016 • additional items to enhance content validity and reliability • revised wording to increase clarity and specificity • better differentiation between minor and severe levels of each scale • new scales to measure sexual coercion and physical injury • a new format to simplify administration and reduce response sets. (Straus et al., 1996: 283)

However, methodological and theoretical critiques of this perspective remain. Proponents of family violence research use methods which assume that 34 Explaining domestic violence respondents are truthful in their reporting of their own engagement in violence and as such findings are presented as valid, representative and unbiased. This representation is challenged by victims of men’s violence who have experienced ‘denial’ and ‘minimisation’ as key features of violent men’s behaviour. Denial may involve the violent man totally denying his role in abuse, despite the victim’s word and evidence to the contrary. Minimisation can include trivialising violence implying that it was ‘just’ a slap or that the violence was in retaliation. Some more recently established perpetrator programmes not only run programmes for working with men but in parallel provide Integrated Safety Services (ISS) for partners and ex-partners of these perpetrators. This contact with women is essential, as in part it allows workers to ‘check out’ with women whether denial and minimisation are being played out by the offender on the perpetrator programme (see www.respect.uk). Anderson (2005; 2009: 1455) suggests that a further limitation of gender symmetry researchers is that they lack a theoretical understanding of gender, arguing that: ‘gender is limited to a box in which respondents mark their sex category’. The implication of this is that gender symmetry researchers are ‘thus unable to ask theoretically driven questions about how gender organizes the lives of the respondents who answer the surveys’ (Anderson, 2009: 1455). A further critique is that the measurements of individual acts of violence are taken at face value; the ‘context’ of violence is not seen as important. The implication is that women are just as likely as men to initiate violence or respond to a given situation in a violent or aggressive way. Thus ‘throwing an object at your partner’ be it a cushion or a TV would be considered in the same vein in that an object had been thrown, whereas clearly the effects of throwing a cushion are not the same as throwing a TV. Similarly, context is not considered in terms of whether the act is one of attack, resistance or self-defence. Violence is perceived as gender neutral. From this perspective ‘violence is as violence does’ and a wider sense of broader mitigating circumstances is deemed irrelevant. The ‘search for equivalence’ is unequivocal. In Scotland, the Scottish Crime Survey (2000) suggested that 1 in 3 of those forced or threatened by (ex) partners were male whereas Scottish Police Statistics suggest 1 in 13 incidents of domestic violence involved male victims. Gadd et al. (2002) researched this apparent discrepancy and looked at the extent and nature of men’s experience of domestic violence in Scotland. Gadd et al. (2002) found that male respondents had misunderstood the focus of the self-completion component Downloaded by [University of Defence] at 01:45 24 May 2016 of the Scottish Crime Survey and that the nature of men’s experience differed in nature and patterns of reporting to the police. In follow up interviews, over 1 in 4 of those men identified as victims of domestic abuse in the Scottish Crime Survey subsequently claimed not to have been victims. Further, in comparison to female victims of domestic abuse the male victims were less likely to have been repeat victims and less likely to have been seriously injured and report feeling fearful in their own homes (Gadd et al., 2002). The ‘women do it too’ perspective does have academic credence for some but it particularly appeals to popular culture and debate. In July 2012–March 2013, Explaining domestic violence 35 the British TV soap Coronation Street ran a story in which ‘Tyrone’ a local car mechanic was a victim of his girlfriend’s aggression. Similarly students who think that it’s ‘not fair’ to just focus on men as offenders (though they may never have raised this concern when looking at any other types of crime) or practitioners concerned that male victims of crime are not being considered ‘equally’ express this perspective. Such a perspective reflects a non gendered framing of domestic violence. Stark (2009: 1512) argues that

one provocative criticism of the domestic violence revolution is that over time, it displaced the focus of feminist activism from male domination established through constraints on women’s freedom and equality to ‘the unitary phenomenon of violence’, losing sight of the end we sought to challenge by highlighting its most dramatic means. Once violence was separated from gender politics, it was logical for our critics to ask, ‘Does gender matter?’ Absent a critique of inequality as the context of abuse, there is no obvious rationale for privileging one expression of violence over others.

Gender asymmetry ‘Violence against women’ activists, researchers and academics contest the above findings which denote gender symmetry, arguing that violence against women is gendered behaviour and as such it is asymmetrical in nature. Patriarchy is seen as the backdrop, for primarily heterosexual intimate partner relationships, in which gender oppression can manifest itself as violence. In this context, the gendered dynamic of intimate partner relationships needs to be acknowledged in order to better determine the gendered nature of domestic violence. From this perspective all violence is gendered. Men are the main perpetrators of violence and women and children are the main victims. That men are the main offenders is perhaps not as ‘radical’ as some assume. Mainstream criminology clearly highlights the global phenomenon that men are more likely to commit all types of crime, that men are more likely to commit domestic violence is perhaps not such an anomaly. Anderson (2009) argues that no violence is gender neutral and suggests that understanding how control and violence are gendered has been hampered by the tendency for gender asymmetry researchers to study women only as victims and men only as perpetrators. She suggests that researchers assume that gender matters but fail to demonstrate how and argues that gender asymmetry researchers Downloaded by [University of Defence] at 01:45 24 May 2016 need comparative data to challenge gender symmetry critics who claim, ‘But, women use violence and control too’ (2009: 1454). She continues:

The sex-symmetry researchers have this comparative data and they use them to discredit the argument that gender matters… If we can show that the dynamics of violence and control are different for women and men, then we can counter the argument that gender is not relevant to our understanding of domestic violence. (Anderson, 2009: 1454) 36 Explaining domestic violence A counter critique can be leveled at Anderson (2009), who fails to acknowledge feminist analyses of gender power relations in the context of women who kill violent partners.

Responding to the gender symmetry debate: categories of domestic violence Some scholars in the United States, such as Johnson (2000) and Johnson and Ferraro (2000), have called for more nuanced understandings of domestic violence in an attempt to reconcile the differences in findings of radical feminist/violence against women and family violence researchers. Johnson (2000) argues that distinct ‘types’ or ‘categories’ of domestic violence can be distinguished. The first is ‘common couple violence’, in which abuse is ‘not connected to a general pattern of control and arises in the context of a specific argument in which one or both of the partners lash out physically’ (Johnson and Ferraro, 2000: 949). The second category refers to ‘intimate terrorism’ in which ‘violence is motivated by a wish to exert general control over one’s partner’ (Johnson and Ferraro, 2000: 949). A third category, ‘violent resistance’, is typified by behaviour primarily perpetrated by women, exemplified by them defending themselves or attempting to escape. Finally, Johnson identifies ‘mutual control’, a category which describes both partners as controlling and violent. These typologies or categories suggest that domestic violence is not a unitary concept, but rather that qualitatively different categories of physically aggressive relationships can be distinguished. Crucial to the dynamics of these different types of physically aggressive relationships is the element of control. Thus ‘intimate terrorism’ reflects a high level of control, presenting a classic domestic violence profile whereas ‘common couple violence’ is not connected to a pattern of control. More recently again in the United States, Stark (2007) has developed similar concepts and draws upon Johnson’s (1995; 2006) intimate terrorism–situational couple violence–violent resistance typology and proposes three types of partner abuse: couple fights, partner assault and coercive control. While Stark (2007) argues that coercive control is more likely to be enacted by men against women than by women against men, he uses these typologies to explain gender symmetry in some domestic violent relationships. Stark (2007: 105) argues that while ‘sexual inequality plays some role in all three contexts coercive control is the more gendered of the three concepts’. Anderson (2009: 1454) is concerned that Stark’s use of typologies Downloaded by [University of Defence] at 01:45 24 May 2016 ‘has facilitated the argument for a gender neutral approach to partner violence’. In particular she points out that Stark ‘suggests that coercive control is gendered and is not “primarily about violence” (p. 10) whereas fights and assaults are violence, but not gendered’ (ibid.). She argues that an ‘analysis of how gender affects the motivation, meaning and outcome of all [my emphasis] types of relationship violence’ are needed (ibid.). In summary, Anderson challenges the usefulness of Stark’s (2007) typologies and his interpretation of the significance of gender. However, in analysing Starks typologies, UK readers should perhaps err on the side of caution as the use of the word ‘fights’ is not always equivocal in the UK context. Explaining domestic violence 37 The relative merit of theorising domestic violence using typologies is contested. Distinguishing ‘types’ of violence can be ‘helpful as they encourage critical scrutiny of the nature, frequency and consequences of violence’ (Hoyle, 2007: 152). Typologies can enable us to account for different types of violent relationships perhaps indicating a more sophisticated understanding of the dynamics of violent relationships and thus suggesting the likelihood of a more targeted and appropriate intervention. On the other hand, the use of such typologies can be interpreted as minimising the significance of gender oppression and as an unnecessary concern to fragment violence against women.

An intersectional approach The intersectional approach can also be usefully employed to theorise domestic violence and its different forms. As Thiara and Gill (2010: 18) and others note:

Intersectionality – drawing on the critique by black feminists in the US and UK in the 1970s and 1980s about the primacy given to gender over other oppressions by white feminists – has become an internationally influential and increasingly utilised concept by feminist scholars and activists to signify and investigate the complex and intertwining nature of oppression and inequality. (Brah and Phoenix 2004; Ferree, 2009 cited in Thiara and Gill, 2010: 18)

This approach is variously referred to in the literature as intersectionality theory, multi-racial feminism or multi-cultural feminism. The main focus is on interlock- ing and multiple inequalities (Baca Zinn and Thornton Dill, 1996; Thompson, 2002; Burgess Proctor, 2006: 35). Two theoretical strands can be identified within the overall intersectional approach. One strand regards gender, class and race as individual ‘identity characteristics’, key in shaping experiences of violence in intimate relationships. This strand acknowledges that individuals self-identify, in ways other than gender alone, and that when considered, these identity characteristics can present a more informed understanding of domestic violence. The other theoretical strand goes beyond identity characteristics and develops a social structural perspective that recognises the structural oppression that class, race and gender systems can perpetuate over marginalised groups. This approach recognises systems of power and ‘hierarchies’ of oppression which variously serve to Downloaded by [University of Defence] at 01:45 24 May 2016 marginalise people at different points in time and at different points in the social structure. In this way a race–class–gender framework facilitates consideration of a diversity of women’s experience of violence. It is also important to consider the different responses to women positioned differently in the hierarchies of race, class and gender in the context of help seeking (Patel, 2000). In the UK, Thiara and Gill (2010) point to two ways in which black minority ethnic (BME) women’s experience of violence has been influenced by black feminism – first they point to the impact of black feminist thought in the 1970s and 1980s and its introduction of notions of ‘multiple oppression’ 38 Explaining domestic violence and ‘intersectionality’ and second to ‘an emerging body of writing by South Asian Women (that) has begun to highlight South Asian women’s experience of violence and abuse’ (Thiara and Gill, 2010: 29, 30). Thiara and Gill (2010) contribute to this body of work using an intersectional approach to theorise South Asian women’s experience of violence. They avoid simplistic generalisa- tions that ground explanations for violence against South Asian women solely in ‘culture’ and highlight the significance of both structural power hierarchies and individual differences amongst women.

Gender entrapment In the United States, Richie (1996) used the intersectional approach to demonstrate how intersecting systems of race, class and gender can contribute to victims/ survivors of domestic violence themselves becoming involved in a criminal way of life. In the UK, more recent research conducted by the Fawcett Society’s Commission on Women and the Criminal Justice System 2004 and 2007 highlighted similar findings. Richie (1996) provides a powerful in-depth account of the lives of a group of primarily low income, African American women who, having experienced violence and abuse at the hands of their partners, had themselves become enmeshed and involved in crime and ultimately imprisoned. Richie (1996: 133) uses the concept of ‘gender entrapment’

to describe what happens to women who are marginalized in the public sphere because of their race/ethnicity, gender and class, and are then battered by their male partners… some women are forced or coerced into crime by their culturally expected gender roles, the violence in their intimate relationships, and their social position in the broader society.

Richie’s consideration of a race–class–gender framework not only offers a nuanced understanding of the integrated dynamics that may be involved for some women who experience domestic violence, but it also sheds light on the increased vulnerability of some women to domestic violence. More recently, Richie (2000: 1136) challenges the notion that all women are equally open to experience domestic violence at some point in their lives, arguing that in the US, lower income Black women are ‘most likely to be in both dangerous intimate relationships and dangerous social Downloaded by [University of Defence] at 01:45 24 May 2016 positions’. Such an arguably precarious conclusion is not based on notions that some men are more violent than others – it is not to argue that black and minority ethnic men are more violent – but rather is based on a theoretical conceptualisation that recognises that some women experience multiple oppressions.

Coercive control A recent contribution to theoretical understandings of domestic violence comes from Evan Stark (2007) in the USA and his model of coercive control. In Explaining domestic violence 39 distinguishing ‘coercive control’ from domestic violence, Stark (2007) emphasises the ongoing cumulative effects of men’s strategies to control and oppress women in many spheres of their lives. His work is influenced by the Duluth Wheel, and raises the question as to whether psychological/emotional violence counts as actual ‘violence’. Stark (2007; 2009) argues that psychological and emotional strategies in the spokes of the wheel are fundamentally ‘coercive’ rather than ‘violent’. In making this distinction, he emphasises the psychological and controlling aspects of men’s abuse in intimate relationships and ultimately women’s entrapment in personal life. In so doing, he argues that such a distinction is necessary to close the gap between the widely accepted ‘domestic violence model’ and the predominant strategies men have developed to marginalise, oppress and control women in their personal life. This point can be critiqued when considering the inter-relationship between coercion and violence, for example, in relation to ‘threats’ which the criminal justice system has always recognised as violent. Also, without a history of violence, or threatened violence in a relationship, coercion has no purchase and can be dismissed. The emphasis of Starks’ (2007) model of coercive control differs from the widely accepted understanding of domestic violence in that his model emphasises the day to day controlling acts and strategies of violent men, as opposed to the physical abuse inflicted. This being said, such an understanding has always been central to feminist analysis and recognised by practitioners in the UK and those following the Duluth model in the USA. This emphasis on coercive control shifts the focus from an incident based approach of domestic violence, to one which focuses on the effect of cumulative psychological abuses and harms. In re-conceptualising domestic violence as coercive control Stark (2007) argues that coercive control should be treated as a ‘course of conduct’ crime, such as harassment, stalking and kidnap. He contends that coercive control is a violation of victims/survivors human rights, in that women’s freedoms are intentionally curtailed by men and their enforcement of ‘women’s performance of gender in personal life’ (Stark, 2009: 1511). As such it deprives women of equality, autonomy and freedoms. The implication of such theorising is that coercive control requires a distinct criminal response which reflects the unique nature of coercive control. As such he argues that it should be criminalised (in the USA) and recognised as a ‘liberty crime’ as opposed to a crime of assault. Whereas in the UK it has been broadly interpreted as ‘progressive’ that domestic violence is treated ‘as seriously as any other crime’, Stark (2007) suggests that one of the Downloaded by [University of Defence] at 01:45 24 May 2016 mistakes of the US criminal justice response has been to treat domestic violence as any other crime, while its very nature suggests that it is most unlike any other crime. ‘The new crime would have much in common with indentured servi- tude, terrorism, or hostage taking, but would not merely mimic public law by conflating personal harms with public harms’ (Stark, 2009: 1515–16). In distinguishing a non-incident based model of coercive control and framing coercive control as a ‘liberty crime’ Stark (2007) sets a challenge to criminal justice policy makers and service providers alike to best respond to victims. 40 Explaining domestic violence The concept of ‘unreality’ and coercive control In the UK, responding to Stark’s (2007) theory of coercive control, and re- examining cases from her own work and research with women experiencing domestic violence, Williamson (2010) examines how coercive control operates. She highlights how women, for decades, have consistently talked about non- physical abuse as the most difficult to deal with and the most significant in affecting women’s self-esteem, confidence and self-respect (Williamson 2010: 1412). In earlier text and in the Duluth Wheel this was referred to as mind- games and has been likened to the effects of the experience of hostage/kidnap relations, for example, the case of John McCarthy, held hostage in Lebanon between 1986–91. Williamson (2010) illustrates the constant anxiety women face and how women variously negotiate coercive control in their everyday lives. In so doing, she conceptualises this as the ‘unreality’ of coercive control as experienced by those living in the ‘alien world’ of the domestic violence perpetrator. She is not arguing that coercive control is unreal, rather she outlines ‘how abusers create and maintain a world in which it is their reality that determines the boundaries, rules and expectations of their partners’ (and children’s) reality’ (Williamson, 2010: 1417). Williamson (2010) critiques current responses to women’s experience of domestic violence, noting that an incident and ‘evidence based’ approach fails to respond to the emotional and psychological effects of domestic violence. Thus she acknowledges the usefulness of Stark’s (2007) concept of coercive control suggesting that:

to recognize the psychological harm to self that is caused by the unreality of domestic violence, we need to think in terms of coercive control… by creating an unreality that undermines the self-identity of the victim, the perpetrator is guilty of a crime against identity and liberty, one which Stark (2007) rightly theorizes, is based on gender roles. (Williamson 2010: 1422)

There is evidence to suggest that the concept of coercive control is gaining more credence in the UK. In September 2012 the UK government announced that it would change the law to recognise ‘coercive control’ as part of domestic violence (Home Office, 2013) (see Chapter 1). Downloaded by [University of Defence] at 01:45 24 May 2016

Theorising gender and coercive control Anderson (2009: 1444) responds to Stark (2007) in her article ‘Gendering Coercive Control’ arguing that Stark ‘suggests that gender is a form of structural inequality that makes women more vulnerable than men to the strategies of coercive control’ yet that he ‘assumes’ rather than ‘demonstrates’ that such inequality makes women more vulnerable. Anderson (2009: 1445) calls for the recognition Explaining domestic violence 41 of a ‘multilevel’ theory of gender, suggesting that to understand how coercive control operates gender should be considered at three different levels: i) identity, ii) interaction and iii) social structure.

Gender identity Anderson (2009) points to the role of both sociological and psychoanalytical theory in exploring gendered identities and coercive control. A sociological understanding of gender identity examines how individuals are socialised to identify as either male or female and the varying autonomy to which individuals identify as masculine or feminine (or neither). In contrast, the psychoanalytical approach to gender identities, as outlined by Anderson (2009: 1445), highlights ‘instability, tension and contradiction in gendered identities’. In terms of their applicability to explaining domestic violence, the sociological approach suggests that men are socialised to identify as ‘masculine’ and the stereotypical gendered, yet normative, behaviours that this entails have been variously credited (and discredited) to explain men’s violence in general. In other words, men are socialised to be more ‘aggressive’ than their female counterparts, who are socialised to conform to stereotypical gendered norms and gender roles associated with femininity. Such explanations have been used to explain women’s perhaps ‘subservience’, ‘conformity’ and lack of use of aggression and violence. Some scholars have critiqued this view, pointing out that i) ‘not all men are violent’; despite all receiving similar cultural and social messages about masculinity and that ii) ‘women can be violent too’. The psychoanalytical approach to gender identity and domestic violence suggests not that ‘the more masculine you are, the more aggressive you are’ rather that ‘the vulnerability and instability of masculine identities may lead some men to use violence to… restore their sense of selves as real men’ (Anderson 2009: 1445). Such theorising takes us back to the 1940s, as Talcott Parson’s functional- ist theory (also predicated on psychoanalysis) suggested that domestic violence was normative and a type of informal social control aimed at enforcing conformity in the home on the part of women and children.

Gendered interaction Anderson (2009) argues that ‘the theory of gender as interaction is crucial to Downloaded by [University of Defence] at 01:45 24 May 2016 understanding coercive control as a gendered process’ (2009: 1449). She points to the notion of ‘performativity of gender’ (see Butler, 1990) and aligns the notion of ‘gender as performance’ with coercive control. Stark (2007: 5) notes that controllers ‘micro regulate everyday behaviours associated with stereotypical female roles, such as how women dress, cook, clean, socialize, care for their children, or perform sexually’. In this sense, both genders ‘do’ or perform masculinity and femininity. Such a perspective has been widely contested since the 1950s. 42 Explaining domestic violence Gender as structure Anderson (2009) considers gender as ‘structure’ as a third level of gendered analysis. ‘Theorists of gender as social structure propose that gender organizes the lived experiences of women and men by placing them into unequal positions of power’ (Risman, 1998 cited in Anderson, 2009: 1449). Anderson suggests that one of the strengths of Stark’s (2007) theorising of coercive control is his focus on gender as a form of structural inequality, which, he argues, increases women’s vulnerability to men’s coercive control. Anderson (2009) suggests that Stark (2007) makes three key points about the links between gender as structural inequality and coercive control, that gender inequality i) is a cause of coercive control, ii) facilitates coercive control and iii) is a strategy of coercive control. First, Anderson (2009) suggests that Stark (2007) cites gender inequality as a cause of coercive control, resulting in it being more likely to be perpetrated by men than women. ‘Unlike other capture crimes, coercive control… is gendered in that it relies for its impact on women’s vulnerability as women due to sexual inequality’ (Stark, 2007: 5; emphasis in original). Second, Anderson (2009) points out that Stark suggests gender structural inequality facilitates coercive control, preventing women from ‘freely developing their personhood, utilizing their capacities, or practicing citizenship’ leading to their ‘entrapment’ (Stark, 2007: 4). Third, Anderson (2009) suggests Stark conceptualises the link between coercive control and gender structural inequality; as a strategy that emerged due to historical changes in the gender structure where ‘men began to enact coercive control as a response to women’s rising status and progress towards gender equality’ (cited in Anderson, 2009: 1450). She queries this latter assertion asking: ‘if increasing structural gender equality has led men to perpetrate coercive control, will full structural gender equality simply engender even greater efforts by men to buttress the privileges of masculinity?’ (ibid).

Gender equality or gender oppression? It follows that Stark (2007; 2009) can be critiqued for his use of the concept of gender inequality. As outlined at the beginning of this chapter, the radical feminist approach locates the source of violence against women in gender oppression – violence against women is not seen as an equalities or equal opportunities issue – rather gender is conceptualised as gendered power relations of patriarchy.

Downloaded by [University of Defence] at 01:45 24 May 2016 The equalities analysis is grounded in a liberal feminist approach. Thus a radical feminist approach suggests that the concept of gender in/equality is misplaced because it assumes that people are individuals rather than gendered beings. This can lead to an equalities discourse in which the focus becomes an issue of ‘equality of opportunity’ thus diverting attention away from the core issue of men’s use of gendered power and control. In this sense, a radical feminist approach challenges Stark (2007; 2009) for his conceptualisation of gender as an in/equality issue rather than gender as power relations of oppression and subordination. Once Explaining domestic violence 43 the issue of Stark’s use of in/equality is recognised we then return to a radical feminist perspective. Drawing on research from both the UK and the US this chapter has outlined some of the main theoretical approaches and their associated concepts and controversies that are used to explain domestic violence. Before closing this chapter, the last word will be given to Hearn (2012) who perhaps suggests a different direction for future theorising men’s violence towards women:

In analysing domestic violence there is a continuous temptation to try and explain (usually men’s) violence by reference to something else, other social divisions, principally divisions of economic class, but also age, locality, religion, sexuality. This may seem obvious enough, but this does not quite capture the autonomy and self-reproducing nature of violence and systems of violence. Violence is not always simply a subset of some other social division. This is a change of perspective from seeing violence as always ‘caused’ by something else, to one in which the practice of violence is itself a form of social inequality, an unequal and unequalizing social structural division and relation of its own. Violence is a social distribution of who does what to whom… Violence is a means of enforcing power and control and power and control in itself. (Hearn, 2012: 164)

Summary This chapter has argued that despite monumental strides in empirical research into domestic violence over the past 40 years, theoretical development has trailed behind. Theoretical approaches developed to better understand the dynamics of domestic violence coexist and often contradict each other. These contradictions can manifest themselves in many ways, for example in identifying the ‘cause’ of domestic violence, in conceptualising gender and in identifying the likely victims and perpetrators of domestic violence. We have argued that radical feminism, if viewed simplistically, can be misunderstood, particularly in its use of patriarchy. While not beyond criticism, we suggest that radical feminism/activism remains crucial and invaluable in its continued contribution to understanding violence against women broadly and domestic violence and its various forms in particular. This chapter has also highlighted debates surrounding the a/symmetrical nature of Downloaded by [University of Defence] at 01:45 24 May 2016 domestic violence, gender theorising and the use of ‘categories’ to conceptualise domestic violence. It is important to discuss these theoretical developments, not least in part because of their influence on policy and practice. In this context the following chapter outlines some key policies and laws that have been developed to respond to domestic violence in England and Wales. 3 Law and policy

Introduction The laws and policies we now have in place to deal with domestic violence as a criminal justice problem have not followed a simple linear continuum of development leading to today’s arrangements. In this chapter we have distilled the main influences and themes that have taken place over the last 40 years. In approaching domestic violence from a legal and policy point of view we also accept that the problem of domestic violence will never be ‘solved’ by such broad instruments as the law and government policy alone. Such an approach carries with it the danger that ‘criminalising’ and ‘penalising’ domestic violence reduces it to the techniques and skills of the criminal justice practitioners alone to ‘get it right’ and to the pathologising of the individual perpetrators and victims of domestic violence. The criminal justice system is not always the best way of resolving social and political problems but none the less ‘criminalisation has… become the preferred remedy of the neo-liberal state when faced with social conflicts, deviance and disorder’ (Snider, 2008). The law and the criminal justice system does, however, have a significant symbolic power and a brief historical look at how domestic violence laws and policies have been formulated over the years and operate today will help us understand the processes and practices we consider in Chapters 4–7.

Some brief history Part of British folklore is the belief that the common law of the land allowed a man

Downloaded by [University of Defence] at 01:45 24 May 2016 to beat his wife with a stick as long as it was no thicker than a thumb. The ruling was at one time attributed to the judge Sir Francis Buller in 1782 when he was ridiculed for it by the cartoonist James Gillray. Historians have questioned whether Buller ever said anything to this effect and others have been unable to trace any real origin of the phrase but the story as myth has nonetheless continued to be passed down as some long standing ‘legal’ excuse for domestic violence (Kelly, 1994). A more comprehensive history of criminal justice and domestic violence than the one here has still to be written but we could usefully note the views of some historians at this point. Emsley (2005), for example, describes the ideal Victorian Law and policy 45 family as a middle-class concept with every member of it knowing their place. Violence in the family was seen as a working-class problem brought on by drink, arguments over money and assumptions about the ‘duties’ of a wife. In this situation middle-class justices and the judicial elites might take on a disciplining and moralising role when occasionally called on to intervene through the courts. Emsley cites the words of one judge from 1867 to a man in the dock that ‘it is necessary that people in your class should be taught – what I fear they don’t understand – that they have no right to beat their wives’ (ibid.: 60). The picture has, however, never been a simple one. Working-class communities might be supportive of some men and their violence but were also quite capable of making their own judgements and meting out their own community punishments when it came to domestic violence. In 1883 the police had to take one William Stewart of Deptford into custody for his own safety after neighbours went after him following several attacks on his wife (ibid.: 63). Such vigilante actions had their origins in even earlier times and included the ritual dressing up – and cross dressing – of the crowd and the accompaniment of makeshift bands playing ‘rough music’ as they surrounded a wife abuser’s house. Thompson argues that these ritualised activities also served the purpose of allowing the crowd to contain its emotions and not let them run over into excess violence (Thompson, 1991: Chapter 8; see also Dobash and Dobash, 1981). The Victorian police and courts tended to intervene only in a case of domestic violence when a woman had died at the hands of her spouse. Even then police officers were known to offer supporting evidence for men who had killed their wives. In 1912, a 44-year-old London man charged with manslaughter of his wife received a testimony from the police that he ‘had a very good character, but was very quarrelsome’ while his wife was reported to be ‘partial to other men, and was of a very irritable and nagging nature’. The man was sentenced to prison for six months (Emsley, 2005: 62). With no real police intervention we can assume there was little in the way of prosecutions or other criminal justice help to women victims of violence at this time. In 2008 when the Chair of the House of Commons Home Affairs Committee asked a Chief Constable ‘has there been a cultural change in the way the police have dealt with this issue’ the reply was expansive:

Yes there has been a [cultural] change and I advance four reasons for it: first there has been a change in social attitudes and political engagement in this Downloaded by [University of Defence] at 01:45 24 May 2016 very serious crime; second, the prevention of violence has become a higher priority for the Police Service anyway; third, there are clear performance requirements upon the Police Service to eradicate domestic violence where it comes across it; and fourth, the focus of senior managers in the Police Service and HM Inspectorate of Constabulary. (House of Commons 2008: Ev.1)

The police were not the only agency to have changed their view on domestic violence and from the mid-1990s onwards tackling domestic violence had moved 46 Law and policy into mainstream thinking on crime and crime prevention for all the agencies of the criminal justice system. In the rest of this chapter we examine policy and legal changes that started in the 1970s, developed through to the 1990s and continue in the twenty-first century.

1970s – evolving policies One of the problems that have always beset those concerned with domestic violence and criminal justice is that domestic violence of itself is not a criminal offence recognised in law but is comprised of a number of criminal offences (see Box 3.1). The police and other agencies have to use these criminal laws to match up the facts of each case before them. To be taken as a criminal matter domestic violence has had to emerge from this blur of legislation and non-legislation (see Box 3.1 providing a non-definitive list of some of the criminal laws that might be invoked in the name of domestic violence; see also CPS, 2009: Annex A for examples of behaviour regarded as domestic violence).

Box 3.1 The criminal law legal framework to domestic violence Common law – murder/manslaughter 1861 Offences against the Person Act 1968 Theft Act 1971 Criminal Damage Act 1976 Bail Act 1977 Criminal Law Act 1986 Public Order Act 1988 Criminal Justice Act 1988 Malicious Communications Act 1994 Criminal Justice and Public Order Act 1997 Protection from Harassment Act 2003 Sexual Offences Act 2003 Female Genital Mutilation Act 2004 Domestic Violence, Crime and Victims Act 2004 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s4 Downloaded by [University of Defence] at 01:45 24 May 2016 2005 Serious Organised Crime and Police Act 2007 Forced Marriage (Civil Protection) Act

Only in 2012 was a statutory definition of domestic violence attempted and then it was not as a criminal law definition per se but as a definition that would lead to the granting of legal aid funds: ‘domestic violence’ means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial Law and policy 47 or emotional) between individuals who are associated with each other (Legal Aid, Sentencing and Punishment of Offenders Act 2012 s9 Schedule One para 12.9). Apart from being blurred in definition, domestic violence has also been ‘hidden’ within the privacy of the household. Like domestic violence itself the concept of privacy has been equally blurred in definition. Although there was – and is – no precise legal clarification on what exactly constitutes ‘privacy’, the common acceptance has often been that an ‘Englishman’s home was his castle’ and the women and children therein were expected to put up with whatever behaviour he cared to indulge in. The 1970s saw a good deal of activity in raising awareness of domestic violence and these activities involved a re-examination of criminal justice law and policy. The agenda was pushed forward by the feminist perspective and activists who wanted to do something more actively about male violence toward women. If the 1960s had seen the emergence of the modern feminist movement in understanding the nature of this oppression the attention now turned to domestic violence which was a focus for activity and which represented a ‘second wave’. The feminist perspective developed in the 1970s firmly placed violence against women within the patriarchal nature of society that put men and their interests first and women second: ‘Where marital violence is concerned, feminism has spearheaded almost all the advances of the last decade… with a simple direct, intellectually plausible message, it has a broad and powerful constituency’ (Borkowski et al., 1983: 202). An influential book of the times was Erin Pizzey’s Scream Quietly or the Neighbours Will Hear; its attention grabbing title and relative brevity brought domestic violence to a wide audience (Pizzey, 1972). Pizzey later fell from favour with many activists when she seemed to imply that some women liked violence and even sought it out (Pizzey and Shapiro, 1982; see also Wilson (1983) for a retrospective on this ‘second wave’ as it emerged through the 1970s). In 1974 a campaigning group of women started a refuge for women who had experienced domestic violence in Chiswick, London. In turn this led to the creation of Women’s Aid, an organisation to support other women, to raise understanding of violence toward women and to start doing something practical to help women victims of violence. This help included advice and information but also immediate physical protection in the form of emergency safe houses or refuges for women to go to. Federations of Women’s Aid groupings started in England, Wales, Scotland and Northern Ireland. Alongside Women’s Aid other women’s Downloaded by [University of Defence] at 01:45 24 May 2016 groups started the first Rape Crisis Centres in 1976 which enabled the formation of the Rape Crisis Federation in 1996. In response to the women’s campaigning the House of Commons was moved to form a Select Committee to examine all aspects of violence in the family including domestic violence between the adults (House of Commons, 1975; Dobash and Dobash, 1992). Issue could be taken with the use of the term ‘family violence’ because it again clouded the issue and ‘makes it sound as though everyone in the family is equally violent’ (Hague and Malos, 1998: 5). By merging violence against children with that against adults it avoided a head on look at 48 Law and policy the truth about adult male violence. The very term ‘domestic violence’ has been equally criticised for its ambiguity about gender and its connotations of domestic cosiness (ibid.). The sort of attitudes women met from the formal helping agencies at this time were typified by an exchange reported in a local newspaper. This example does not involve criminal justice agencies but gives an idea of the culture of the times. A 25-year-old woman with a 5-year-old child had travelled to Halifax in West Yorkshire from Dundee following trouble with her estranged husband. A spokesman for the Calderdale Housing Department ‘stressed it was not their policy to house people from other towns’ and another spokesperson from the social services department agreed: ‘The responsibility is not ours, just because she is homeless – if it was, everyone from anywhere would be coming to us’ (Halifax Evening Courier ‘Plight of Homeless’ 29 August 1975). Prompted by the 1975 Select Committee the Labour government produced three significant pieces of civil legislation in three successive years: the 1976 Domestic Violence and Matrimonial Proceedings Act, the 1977 Housing (Homeless Persons) Act and the 1978 Domestic Violence and Magistrates Courts Act. None of these civil Acts would contribute directly to criminal justice processes as such but they did take domestic violence into civil law and they did continue to raise awareness. The 1976 and 1978 Acts allowed the courts to make personal injunctions protecting women or excluding violent men from the home; these orders were to be made in the county courts and magistrates courts respectively. These injunctions are today to be found in the Family Law 1996 (for more on this see Chapter 4). The Housing (Homeless Persons) Act 1977 accepted domestic violence as a cause of homelessness and therefore allowed women in that position to be helped with emergency accommodation regardless of where they came from within the UK; the Act has been updated in the Housing Act 1996 Part Seven and The Homelessness Act 2002. These early 1970s Acts were often criticised for their limitations but they did raise the profile of domestic violence for some professionals and practitioners who had hardly recognised it in the past. In the case of the police they did now find themselves given a new role, because powers of arrest could be attached to the injunctions to deal with those who did not comply with them. An unintended side effect of the new civil laws was the array of ‘solutions’ that were now being opened up. Women victims of domestic violence could on paper go to solicitors for injunctions, refuges for immediate shelter, housing departments Downloaded by [University of Defence] at 01:45 24 May 2016 to claim homelessness or to the police to start criminal proceedings. They could also go for social work advice from the emerging social services departments started in 1972 or to hospitals should there be a need for medical intervention. Such an array might be seen as progress but it could also prove confusing and even at worst a cause of ‘buck passing’ between agencies. Alongside these feminist ideas, activist interventions and the new civil laws came a greater understanding generally of the place of the victim as the ‘lost’ party in the criminal justice process. Women’s Aid and Rape Crisis had initiated the new awareness of women as victims of male violence and sexual violence but Law and policy 49 this theme of the victim generally was now picked up by organisations like Victim Support taking on the cause of all victims of whatever crime. Victim Support started in 1979 and had no apparent political agenda, seeking only to ‘help’ the victims of crime. They were able to de-contextualise crimes from other social currents and wider cultural issues such as gender relations and unequal distributions of power. This was far more acceptable to those ‘in power’ and wary of underlying challenging agendas. Victim Support soon became the focus of attention in a way that the two earlier organisations had never achieved. The victim as the forgotten party of the criminal justice system soon became a familiar theme and politicians were quick to seize the victim as a useful leitmotif. Talk began of ‘rebal- ancing’ the criminal justice system to help the victim and of including the victim’s ‘voice’ into the system. At a later date the aim was to even put the victim ‘at the heart of the criminal justice system’. Whether this could ever fully be achieved has been questioned (Williams, 1999; Mawby and Walklate, 1994).

1979 to 1997 – crime, justice and protecting the public During the 1980s the British police in particular made a degree of headway in understanding domestic violence. This was a time when the police were subjected to unprecedented scrutiny by a public that did not always like what it saw. The Brixton riots in London and the other regional riots of April 1981 revealed the police as distant from the public they served, inflexible and over-reacting, if not actually oppressive toward that public; allegations of racial discrimination were made. The subsequent Scarman Report recommended changes in police recruit- ment, training, management and methods of policing; it suggested closer forms of communication and consultation with the communities being policed (Scarman Report, 1982). The forceful public order policing of the miners strike in 1984–5 only added to the critics of the police and some have even described this period in the mid-1980s as being one of a time of crisis for the British police (Dunhill, 1989; Harne and Radford, 2008: 121). The police approaches to the investigation of the related world of sexual offences received unprecedented media attention when a 1982 television documentary on the Thames Valley Police made by Roger Graeff found male officers demonstrating clumsy, unsympathetic and disbelieving attitudes toward a woman victim of rape. In an earlier age women police officers would have interviewed women victims but since the 1975 Sex Discrimination Act both male and female Downloaded by [University of Defence] at 01:45 24 May 2016 officers were expected to do the same sort of work and the men were now revealed to be wanting in the case of sexual offending. The immediate outcome was Home Office guidance to the police advising them to be more sensitive in dealing with women victims of rape (Home Office, 1983; Cook, 1983). Later came the 1984 Police and Criminal Evidence Act which codified the powers available to the police and produced Codes of Practice for the police conduct of interviews; the Act was implemented from 1 January 1986. A continuing criticism of the police was that they were still reluctant to get involved in domestic violence regardless of what senior officers might say (see 50 Law and policy Women’s National Commission, 1985). A further Home Office circular was dis- seminated (Home Office, 1986) and the Metropolitan Police became the first to produce a Force Order encouraging officers to be mindful of arrests as an appropriate intervention – what would become known as the ‘pro-arrest’ approach (Harne and Radford, 2008: 120). Meanwhile the White Paper Crime, Justice and Protecting the Public was published in 1990 (Home Office, 1990b). The White Paper’s very title with the afterthought reference to ‘protecting the public’ was a first formal indication of a new direction to be taken by criminal justice and the idea of ‘public protection’ soon moved to centre stage. A 1996 White Paper on all aspects of criminal justice was entitled simply Protecting the Public (Home Office, 1996a). Public protection has today become a matter of orthodoxy for the practitioners of the criminal justice system encompassing as it does the identification of those who pose a risk to society through their violent or dangerous sexual behaviour and what precau- tionary measures we can take to manage and reduce that risk (Nash, 1999; 2006). The Home Office started off the new decade with yet more circular guidance on domestic violence. Home Office circular 66/90 has come to be regarded as a significant document because it spoke for the first time of domestic violence as this ‘serious violent crime’ (Home Office, 1990a). The Independent newspaper opined that:

For many years there was an unspoken assumption in male-dominated police forces and courts that rape – like domestic violence – was often something of a joke that many victims had somehow brought their suffering upon themselves… [this] circular will reverberate round police stations… for years to come. (‘Violence in the Family’ editorial The Independent 1 August 1990)

The circular recommended each police force draw up a policy statement to guide officers emphasising the duty to protect victims, and children, treat the crime seriously, use powers of arrest, be wary of trying for reconciliation and the keeping of good records to assist policy evaluation (Home Office, 1990a); Scotland had its own version of the circular (Scottish Office, 1990). Chief Officers were urged to consider setting up dedicated Domestic Violence Units with designated officers as Specialist Domestic Violence Officers (SDVOs) (Home Office, 1990a: para 9). Later evaluations of circular 66/90 and its implementation gave it a mixed wel- Downloaded by [University of Defence] at 01:45 24 May 2016 come. Specialist Domestic Violence Officers were appointed but often no training was given and the role had to be developed by the SDVOs themselves. The idea was that they received reports from the regular officers who had attended incidents and then the SDVOs offered their own follow up and support to ensure best evidence and liaison to other helping agencies. In practice there was variation between forces in how this was done and the work was held in low status by many forces (Grace, 1995; Plotnikoff and Woolfson, 1998). According to one SDVO the problem lay with senior managers: Law and policy 51 There is no credibility in dealing with domestic violence as far as my colleagues are concerned… the uniformed officers just don’t want to get involved… I talk at divisional meetings to inspector rank and below to raise awareness of domestic violence. I still get comments like ‘didn’t you used to be a policeman?’ (Plotnikoff and Woolfson 1998: 11–12)

Later scholars have none the less suggested that circular 66/90 – despite problems of implementation – was ‘government recognition of domestic violence as a serious violent crime [and] marked a significant historical moment in domestic violence discourse’ (Harne and Radford, 2008: 20; for more on this see Chapter 4). The contribution of feminist activism and campaigning to law reform cannot be underestimated. One area of criminal law that changed in the early 1990s was that concerning the crime of rape by a man against his own wife; up until this time it had been held in common law that it was not possible for a man to be charged with the rape of his own wife. It was assumed that she had given a generic consent to sex on marrying the man. As recently as 1984 a retired Appeal Court judge had opined that marital rape should not lead to a prosecution because it would prevent any hope of rehabilitation of the marriage and this in turn would have an injurious effect on the children (cited in Criminal Law Revision Committee 1984 para 2.66). In Scotland a High Court ruling decided that rape within marriage was a criminal offence (Douglas Home, 1989) and in turn this led the Home Office in February 1990 to refer the matter to the Law Commission for their advice; their report ‘Rape within Marriage’ recommended rape in marriage become a criminal offence (Law Commission, 1992). In the meantime a House of Lords judgement had effectively changed the law by recognising marital rape (Wynn Davies, 1991). During the case in question Lord Keith quoted the dictum of Sir Matthew Hale from his book History of the Pleas of the Crown dated 1736 that until now had held good that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to the husband which she cannot retract’ (Hale, 1736: vol.1, 629 cited in The Independent Law Report 24 October 1991). Lord Keith argued that this position had already been departed from in earlier judgements and ‘on grounds of principle there was no good reason why the whole Downloaded by [University of Defence] at 01:45 24 May 2016 proposition should not be held inapplicable in modern times’; in his opinion ‘it was clearly unlawful to have sex with any woman without her consent’ (The Independent Law Report 24 October 1991). Claire Glasman for ‘Women against Rape’ declared it to be the end of ‘250 years of legal sexual slavery’ (quoted in Tuohy, 1991); the statutory law itself eventually changed in the Criminal Justice and Public Order Act 1994 s142. The first half of the 1990s was also the time of the Charter. The Citizens Charter with its various entitlements in all aspects of public life was produced in 1991 (Prime Ministers’ Office, 1991) and in criminal justice the Victims Charter 52 Law and policy appeared in 1990 (Home Office, 1990c) and again in a second edition in 1996 (Home Office, 1996b). Non-legal entitlements were never quite as strong as rights embedded in law but they did indicate a more positive direction for those concerned to help victims of crime. The Victims Charter led directly to what would become the Victim Personal Statement; the Charter stated that:

You can expect the chance to explain how the crime has affected you, and your interests to be taken into account. The police will ask you about your fears about further victimisation and details of your loss, damage or injury. The police, Crown Prosecutor, magistrates and judges will take this information into account when making their decision. (Home Office, 1996b: 3)

The policy of using Victim Personal Statements was formally started on 1 October 2001 (see Chapters 4 and 6). It was also recognised at this time that witnesses to domestic violence, and other criminal conduct, could be the subject of intimidation to prevent them giving evidence. The 1994 Criminal Justice and Public Order Act s51 became law and created two new offences; these two offences were not solely about domestic violence but are clearly relevant:

• intimidating a witness; and • harming or threatening to harm a witness.

In 1995 the Crown Prosecution Service published its first ever policy statement on the prosecution of domestic violence offences (CPS, 1995) and this has been subsequently updated and revised to its latest version in 2009 (CPS, 2009; for more on this see Chapter 5). The Family Law Act 1996 Part IV replaced the 1976 Domestic Violence and Matrimonial Proceedings Act and the 1978 Domestic Violence and Magistrates Courts Act to update the civil law on protecting victims of domestic violence. The Act provided a range of remedies for molestation and violence within family relationships with non-molestation orders to deal with threats and violence and occupation orders to regulate the occupation of the family home to ensure the applicant and any children are protected. The Family Law Act offered no definition of molestation but precedent now existed from the 1976 Downloaded by [University of Defence] at 01:45 24 May 2016 Act which had used the same wording; the 2004 Domestic Violence, Crime and Victims Act would later make further amendments to this area of civil law. The press and other media in the mid-1990s were now turning their attention and becoming more concerned about sexual offending than domestic violence. The trial of Rose West for multiple sexual assault and murder in 1995 had dominated the crime news and this was now followed by a period of intense focus on men who sexually assaulted children. An era of what might be called ‘paedophile panic’ now set the political agenda (see Thomas, 2005: 19–28). The result was legislation to register convicted sex offenders (Sex Offenders Act 1997), law to Law and policy 53 tighten up the screening of people who wanted to work with children (Police Act 1997 Part Five) and laws to deal with a ‘new’ phenomenon known as ‘stalking’ (Protection from Harassment Act 1997). Stalking was a form of behaviour that became associated with adult domestic violence. Stalking was the unwanted attentions paid to another person that amounted to the level of harassment. The behaviour in itself might not be an offence, such as the giving of gifts, flowers and the writing of letters, but taken together and over a period of time, when it had been made clear they were not wanted, then the behaviour became problematic. The stalker might also present an undesirable and almost constant physical presence in the other person’s life and inevitably the behaviour could become abusive and threatening. Studies revealed 48 per cent of stalkers to be ex-partners of the victim (Sheridan et al., 2001). Stalking and harassment as a behaviour pattern obviously did not just appear in the mid-1990s but had been known in the past when it had been dealt with under mental health legislation. The fixated behaviour had been classed as ‘obsessive’ and the person in need of medical help. Now there was a campaign to get the behaviour criminalised. Publicity was given to celebrities who had been stalked and a campaign organisation called NASH (National Anti-stalking and Harassment Campaign) was started (Tredre, 1996). In January 1996 the rape of a woman who had been stalked in Cambridge while supposedly under police protection triggered the search for new laws (Harrison, 1996; see also Billings, 1996). A Home Office Consultation Paper appeared in July 1996 (Home Office, 1996c) and the new Protection from Harassment Act 1997 was given its Royal Assent in March 1997. In essence the Act created two new offences of harassment and of putting people in fear of violence (ss. 1, 2 and 4) and civil remedies for any breach of non-harassment injunctions (s3) or Restraining Orders (s5) that could be made on conviction. The new law was implemented from 16 June 1997 as one of the first acts of the Labour administration (see also Brown, 2000). The Act was used far more than was anticipated. An estimated 200 people a year were expected to be proceeded against but in 1998 a total of 5,788 fell under its provisions (Edwards, 2001) and although much of the preceding debate had been about stalking by strangers and the Protection from Harassment Act was directed more to strangers who stalked, it soon became apparent that a lot of stalkers were known to their victims and were often abusive ex-partners (Sheridan et al., 2001). Downloaded by [University of Defence] at 01:45 24 May 2016 More recently a review of the law on stalking has been started by the Coalition government and plans to make stalking a more explicitly criminal offence were announced in March 2012 (Home Office, 2012a).

1997 to 2010 – speaking up for justice and safety The new Labour government of 1997 had already stated its views on domestic violence in a 1995 leaflet called Peace at Home (Labour Party, 1995) and it now published its proposals on domestic violence. Living without Fear: an integrated 54 Law and policy approach to tackling violence against women struck a more optimistic tone and recognised that: ‘It is not enough to protect women when they are at their most vulnerable. When crimes have been committed, the criminal justice system must serve their needs and deliver justice to them’ (Cabinet Office/Home Office, 1999: 31). Domestic violence was made an integral part of the government’s Crime Reduction Project (CRP) with an overall budget of £250 million and between 1999 and 2000 a total of £7 million was made available to 34 projects designed to reduce domestic violence in criminal justice and other settings (Home Office, 2000b; for more on policing see Chapter 4). Speaking up for Justice outlined the problem of the intimidated and vulnerable witness in court proceedings. The problem was particularly acute in the cases of victims of domestic violence who could still be the main and only witness to the crimes, and easily intimidated by the perpetrator of the crime (Home Office, 1998; 1999). The Youth Justice and Criminal Evidence Act 1999 brought about the required changes to help get best evidence for the courts. The Act gave greater protection for women victims cross-examined about their own sexual histories and introduced what were now known as ‘special measures’ to offer greater protection in court (for more on this see Chapter 5). On a more general level the new Human Rights Act 1998 required all public services to start taking the European Convention on Human Rights more seriously. The Convention had been in place since 1950 but the 1998 Act allowed cases to be tested in the UK courts rather than in Strasbourg at the European Court of Human Rights. The police noted Articles 2, 3 and 8 of the Convention had a direct relevance to their work in domestic violence and prompted them to develop their ‘duty of positive action’ approach (ACPO, 2008a: para 3.1; for more on this see Chapter 4). The new century was marked by more Home Office circular guidance to the police on domestic violence (Home Office, 2000a). This was the third circular to Chief Constables specifically on the subject (Home Office 1986; 1990a) and although as circulars they did not have the force of law, they were taken seriously by the police and their status should not be underestimated. Professor Sandra Walklate believes ‘these circulars resulted in a marked change of direction for not only policing… but for the criminal justice system as a whole’ (Walklate, 2008). The 2000 Home Office Circular 19/2000 was a direct revision of the 1990 Circular and reiterated the importance that the police should be attaching to domestic violence. The police were asked to adopt a ‘pro-arrest approach’ and Downloaded by [University of Defence] at 01:45 24 May 2016 ‘where a power of arrest exists, the alleged offender should normally be arrested [and] an officer should be prepared to justify a decision not to arrest’ (Home Office, 2000a: part 4). The marginalisation of domestic violence in the police organisation was recognised by the Circular requiring Chief Officers and managers to ‘show strong leadership’ and give appropriate support to their staff. The argument was made that an apparent lack of direction or oversight of domestic violence matters at the top could communicate itself down through the command structure as a message that domestic violence was low priority work (ibid.). Law and policy 55 The new Labour government now also set about reviewing all the laws on sexual offending and making firm proposals on domestic violence; their findings were set out in the publications Setting the Boundaries (Home Office, 2000c) on sexual offending and Safety and Justice on domestic violence (Home Office, 2003a). The White Paper Safety and Justice was published in June 2003. The report was sub-titled ‘the government’s proposals on domestic violence’ and in the field of criminal justice it called for better police responses to domestic violence, the improved prosecution of perpetrators, measures to ensure victims did not feel deterred by criminal justice processes and better laws to ensure maximum protection to stop the violence recurring. Police pro-arrest policies were supported by the proposal to make common assault an arrestable offence and by a proposal to make it a criminal offence to breach a civil order such as a non-molestation order; the latter would obviate the need to attach powers of arrest. On the wider front Safety and Justice wanted to see more preventive work through education and awareness training, and getting information to victims, tackling risk factors such as alcohol and drugs misuse, and a register of civil orders to allow the police to check for outstanding orders against an alleged offender, so they can take immediate action to protect the victim. The sentencing of perpetrators of domestic violence was to be referred to the Sentencing Advisory Panel (see Chapter 6) and new Domestic Homicide Reviews were to be carried out when there had been a fatality (responses to Safety and Justice can be found online at www.homeoffice.gov.uk/docs2/domviolresp.pdf, accessed 2 August 2012). The growing significance of ‘the victim’ in criminal justice was emphasised by the publication of the government’s strategy for improving the position of victims and witnesses. The vision was one of ‘a coordinated approach across the criminal justice system and beyond’ (Home Office, 2003a: Foreword). The Domestic Violence, Crime and Victims Act 2004 took the proposals of Safety and Justice forward. Its original focus on domestic violence was somewhat distorted by the addition of various amendments as the Bill went through its parliamentary stages. It was questionable whether or not domestic violence and victims should automatically have been covered by the same Act, as though the two were almost synonymous, especially as many women now saw themselves as ‘survivors’ of domestic violence rather than ‘victims’. On domestic violence specifically the Act now made common assault an Downloaded by [University of Defence] at 01:45 24 May 2016 ‘arrestable’ offence (s10) when it had previously required a warrant. Justice and Safety had already explained that this change was specifically for domestic violence purposes to encourage arrests by the police. Breach of a non-molestation order made under the Family Law Act 1996 also became an automatic arrestable criminal offence. More controversially restraining orders were introduced and made available in the criminal courts even if the defendant had been acquitted of the charges against him (see Chapter 4). Systems of Domestic Homicide Reviews were also introduced by the Act. These were to take place following the death of a particular adult in a domestic 56 Law and policy situation in order that lessons might be learnt by the professionals and practitioners involved to avoid anything similar happening in the future. The case had been made in Safety and Justice:

It is important to learn as much as possible from domestic violence homicides, to understand where systems failed, why the involvement of agencies or professionals did not lead to effective intervention, and what can be done to put the system right and avoid future deaths. (Home Office, 2003a: para 72)

The Domestic Violence, Crime and Victims Act 2004 s9 provided the legal basis for these Reviews:

Establishment and conduct of reviews (1) In this section ‘domestic homicide review’ means a review of the circumstances in which the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by: (a) a person to whom he was related or with whom he was or had been in an intimate personal relationship, or (b) a member of the same household as himself, held with a view to identifying the lessons to be learnt from the death. (Domestic Violence, Crime and Victims Act 2004 s9)

Another seven years passed before the details on how Domestic Homicide Reviews were to be conducted were published and the new law was implemented from 13 April 2011 (Home Office, 2011b). The Domestic Violence, Crime and Victims Act contained more general provisions (ss32–4) for a new Code of Practice for Victims of Crime which would replace the 1996 Victims Charter. The Code was published in 2005 and non- compliance with it by any of the agencies mentioned in it could be referred to the Parliamentary Ombudsman. These included:

• the police • the CPS • the Prison Service

Downloaded by [University of Defence] at 01:45 24 May 2016 • the Probation Service • the Parole Board • HM Courts Services • and others. (Home Office et al., 2005: para 2.1)

The Code was not a statutory document and was unequivocal in its statement that ‘no organisation has an obligation under this Code’ (ibid.: para 1.6). Early evaluations of the Domestic Violence, Crime and Victims Act were inconclusive, describing findings as ‘limited and in some respects unclear’ Law and policy 57 (Hester et al., 2008b: iii) and the act as somewhat ‘removed’ from the realities of women’s needs on the ground (Musgrove and Groves, 2008). At the same time as the Domestic Violence, Crime and Victims Act was being formulated, the first Specialist Domestic Violence Court (SDVC) had been established in Leeds in 1999 (Home Office, 2003a: 25). Modelled on drugs courts the SDVC considered only cases of domestic violence and sought to offer tailored support and advice from trained magistrates and prosecutors. The new court (a magistrates court) was established at the suggestion of a multi-agency working group chaired by the West Yorkshire Probation Service and sat each Monday. The building itself had separate entrances, exits and waiting areas to keep victims and defendants separate (for more on SDVCs see Chapter 6). Multi Agency Risk Assessment Conferencing (MARAC) has been a feature of domestic violence work since 2005. The MARAC brings together agencies in order to provide a tailored assessment procedure. Conferences are held on a monthly basis to discuss high-risk cases and involve the police, local and health authorities, housing, children’s and women’s services. Robinson’s (2006) research into the process and outcomes of MARACs found them to be ‘invaluable’. By 2009 there were over 200 MARACs operating. MARACs are considered in more detail in Chapter 7. To help victims of domestic violence through their experiences in contact with the criminal justice system, Independent Domestic Violence Advisors (IDVAs) were now introduced to support people throughout the duration of their case. The IDVA acts as advocate and adviser on court processes and MARAC work to ensure access to services (see further in Chapter 7). British justice has always prided itself on being local justice based on what local communities want. Magistrates for example are held to be representatives of the local community. The counter argument to this approach has been the concern about similar offences getting different sentences in different parts of the country. At its worst this was a form of justice by postcode. In order to bring more consistency into the picture the government established the Sentencing Advisory Panel (SAP) as an independent consultancy body on appropriate sentences for different offences and what should be taken into account when reaching a decision; the SAP started its work in July 1999 as constituted under the Crime and Disorder Act 1998 ss80–1. The Sentencing Guidelines Council (SGC) was formed in 2004 with the mandate to issue definitive guidelines to the criminal courts to help them make Downloaded by [University of Defence] at 01:45 24 May 2016 sentencing decisions. The SAP would be an advisory body to the SGC. The courts for their part were placed under a duty to ‘have regard’ to the guidelines but it remained their decision as to what sentence was passed (Criminal Justice Act 2003 ss167–73). The SGC published guidelines on the general concept of offence ‘seriousness’ in December 2004 which it broke down into two main parameters – the culpability of the offender and the harm caused or risked being caused by the offence (SGC, 2004). The SGC went on to publish more specific guidance on cases of domestic violence and breach of a Protective Order in December 2006 (SGC, 58 Law and policy 2006a, 2006b); these will be considered in detail in Chapter 6. The SAP and SGC later merged to form the Sentencing Council that is now the body producing sentencing guidelines (Coroners and Justice Act 2009 s118ff; see also Chapter 6). The search for more and better ways of tackling domestic violence has continued. In August 2007 a Cross Government Action Plan on Sexual Violence and Abuse was published that made the point that sexual assaults were an important and dangerous element of domestic violence requiring greater integration between work on sexual and domestic violence (HMG, 2007: paras 4.2–4.4). The position of women in the criminal justice system generally was also becoming a matter of concern. The Home Secretary commissioned an inquiry following the deaths of six women in HM Prison Styal. The resulting Corston Report made 43 recommendations and called for a more holistic and woman centred approach from the prison service. Domestic violence was recognised as a common feature in the lives of women before their imprisonment (Home Office, 2007). Another Action Plan covering all forms of violence was published in February 2008. Saving Lives. Reducing Harm. Protecting the Public was sub-titled An Action Plan for tackling Violence 2008–11. Violence was classified as ‘public space violence’ and ‘private space violence’, with the latter focused on domestic violence. The Action Plan had key objectives which aimed to disseminate information on good practice in dealing with domestic violence and in particular to ensure that more Specialist Domestic Violence Courts were put in place and the Multi Agency Risk Assessment Conference (MARAC) model was also more widely adopted (HM Government, 2008). The Home Affairs Select Committee Sixth Report on Domestic Violence (2008) criticised the disproportionate focus on criminal justice at the expense of early intervention. In March 2009, the Home Office published a subsequent Consultation Paper entitled Together We Can End Violence against Women and Girls. This Consultation Paper focused more explicitly on actual violence against women. It posed questions on ‘how best can we keep track of the most serious offenders and reduce the risks those individuals posed’ and how information could be shared between agencies and with the public where they may be at risk. The Consultation Paper made reference to the new National Police Database due to replace the current Police National Computer and asked how it could contribute to the tracking of serial offenders and suggested that methods used in other European countries such as the Austrian ‘Go-orders’ allowing the police to exclude perpetrators from a home for a given period of time could be looked at (HM Government, 2009: 7 and 19). Downloaded by [University of Defence] at 01:45 24 May 2016 The Home Secretary asked the police to consider what new laws were needed and to focus on the perpetrators of the violence including serial offenders who move from one abusive relationship to another and at honour killings, forced marriage and genital mutilation. The review was to be led by Brian Moore Chief Constable of Wiltshire who took the lead on domestic violence matters for ACPO (HM Government, 2009: 19). Chief Constable Moore reported back later in 2009 with his report entitled Tackling Perpetrators of Violence against Women and Girls. The report made ten key proposals: Law and policy 59 1 to put Multi Agency Risk Assessment Conferences (MARACs) on to a statutory footing 2 to give potential victims a ‘right to know’ about an individual’s background 3 to be able to register and track serial perpetrators of violence against women and girls 4 to introduce a new offence of ‘course of conduct’ based on interpersonal violence 5 to give witnesses direct access to their own statements 6 to give the police the so-called ‘go-orders’ 7 to introduce a new Order that would protect women and girls from serial perpetrators if proposals two to four above were not adopted 8 to make Conditional Cautions available as a disposal 9 to require that health care professionals report all signs of genital mutilation to the police 10 to introduce a new offence of causing suicide by abuse. (ACPO, 2009)

The ‘go-orders’ were now called Domestic Violence Protection Notices (DVPN) – issued by the police – or Domestic Violence Protection Orders (DVPO) – applied for by the police but issued by the courts. The Crime and Security Act 2010 gained Royal Assent on 8 April 2010 and its sections 24–33 introduced the new orders. The police could issue an on the spot Notice to exclude the perpetrator from the home for 48 hours, and the courts could issue an Order for exclusion from 14 to 18 days. The Crime and Security Act 2010 was one of the final acts passed by the Labour government who also announced that three pilots on the use of the DVPNs and DVPOs would start in 2012 (see Chapter 4). The Mayor of London published his own report on tackling violence against women in April 2009. The Mayor had made such violence a priority for his administration and the report was part of his strategic leadership on the issue. The Way Forward: A Call for Action to End Violence against Women identified five themes to move forward on:

1 taking a global and international view 2 improving access to support 3 addressing health, social and economic consequences Downloaded by [University of Defence] at 01:45 24 May 2016 4 protecting women at risk 5 getting tough with perpetrators.

The latter was seen as sending a clear message to those young men in particular thinking of committing acts of violence (Mayor of London, 2009). These reports by the Home Office, the Mayor of London and ACPO in the last months of the Labour administration were illustrative of how far domestic violence had moved and been taken on by the mainstream criminal justice agencies. While this meant resources and action in important places, it also meant the 60 Law and policy original feminist voice locating domestic violence in patriarchal society was not heard as often (see e.g. Welsh, 2008 and in the USA Lehrner and Allen, 2009).

2010 onwards – call to end violence against women and girls The change of government from Labour to the Coalition in May 2010 took place against a backdrop of fiscal deficit and poor economic prospects. This was going to be the age of austerity. Even before the change the previous government had put out its own warnings that unemployment and austerity would mean women were going to have their own problems and that ‘unfortunately in a small but significant number of cases women may face threats from violent or abusive partners’ (HM Government, 2009: 31; see also Fawcett Society, 2009). In terms of services, over 20 Specialist Domestic Violence Courts were reported to be threatened with closure (Hyde, 2011) and still the warnings continued (Boffey, 2011; TUC et al., 2011; Hill, 2012); journalists using the Freedom of Information Act revealed funding for refuges had fallen by a third in 2011 (£7.8m to £5.4m) (Morris and Peachey, 2012). In October 2010 the government announced the closing down of the Women’s National Commission, a body formed in 1969 which had advised ministers on policy matters affecting women; the Commission had its own ‘Violence against Women’ working group. It was considered an ‘unnecessary’ expense by the new government and became part of what the press called ‘the bonfire of the quan- gos’. The Commission left a legacy document behind when it closed down hoping that a new mechanism would be introduced to allow women’s voices to be heard (WNC, 2010). In the August following the general election, new Home Secretary Theresa May had written to voluntary agencies to say she was going to defer the new Domestic Violence Protection Notices and Orders pilots due to budgetary pressures and the ‘practicability’ of the legislation; an opposition spokesman described it as a ‘very retrograde step’ (Mulholland, 2010). In November after consistent lobbying she reversed the decision and announced the pilots would go ahead after all. Pilot schemes were to be trialled in Greater Manchester, West Mercia and Wiltshire police from 30 June 2011 for a 12-month period (Home Office, 2011b; see also Chapter 4). The other element the Coalition government was anxious to push was that of the private sector in the criminal justice system. The government proposed that Downloaded by [University of Defence] at 01:45 24 May 2016 it would provide oversight and governance with a steer on the way it wanted services to be provided but it did not necessarily think it was the state’s role to directly provide all of these services. A mixed economy of provision of services to offenders would be more efficient. This was not completely new to the Coalition government and had been evolving for some time often under the guise of ‘modernisation’. The private sector could bid for the providing of services that might previously have been provided by HM Prison Service or the probation service (Senior et al., 2007). Law and policy 61 A further element was added to the mixed economy in the form of the payment by results initiative. The coalition developed initiatives of the previous government and expounded them in the 2010 Green Paper Breaking the Cycle which sought to tackle the poor results of prison and community punishments in terms of re-offending rates (MoJ, 2010). Private agencies in future could find themselves only paid if they produced positive outcomes and reduced the rates of re-offending. In terms of domestic violence, it could for example require more demonstrably positive results from anger management courses or alcohol reduction courses (for a critique of Breaking the Cycle in terms of domestic violence see Farmer and Callan, 2012). The coalition government published its strategic vision as a Call to End Violence against Women and Girls in November 2010 (HMG, 2010). Girls had been added in following research that showed they could be abused by boyfriends (Barter et al., 2009). On the same day the Home Secretary announced a £28 million package for specialist services to tackle violence against women and girls which included:

• early intervention – making sure young people understand the importance of healthy relationships and respect the right to say no • the importance of training – for professionals and frontline staff to spot early signs and risk factors of domestic and sexual violence, child sexual abuse, and harmful practices, including a new e-learning training course for GPs on violence against women and children • new powers – helping domestic violence victims break the cycle of abuse including piloting the Domestic Violence Protection Orders • support for victims – ensuring that women who are in the country on spousal visas and who are forced to flee their relationship as a direct result of domestic violence are supported • international work – supporting innovative new projects in the poorest countries. (Home Office, 2010b)

The Call to End Violence against Women and Girls document itself contained more proposals on prevention of domestic violence and how to support the victims of domestic violence as well as improving partnership working and ensuring the perpetrators were brought to justice. It also tied the tackling of violence against Downloaded by [University of Defence] at 01:45 24 May 2016 women in with the use of volunteers and the idea of ‘The Big Society’:

The coalition government’s ambition is to ensure that tackling violence against women and girls is treated as a priority at every level. Greater decen- tralisation and our vision for Big Society will give local people a stronger voice in setting local priorities, and give local areas the means through which to understand what those priorities are. (HMG, 2010: 7) 62 Law and policy The previous government had made reference to the use of volunteers in the criminal justice system; it had referred to volunteers as ‘the third sector’ after the public and private sectors.

The sector’s creativity, its independence from government, and its involvement of thousands of volunteers (including offenders and ex-offenders as volunteers and mentors in prisons and the community) can also help break down barriers, change attitudes and build the motivation necessary to bring about positive and lasting change. (MoJ/NOMS, 2008: Foreword)

Volunteering in the criminal justice system has a long history whether in the probation service, the prison service or elsewhere; the original ‘probation officers’ were volunteers acting as missionaries to the courts and working with offenders on the basis that ‘there but for fortune go you or I’. The tradition has continued with ‘special constables’, prison visitors and the 6,000 or so volunteers who have joined ‘Victim Support’. Some critics of this recent promotion of volunteering point to the possibility that they are being asked to complement and compensate for the reductions in professional staff caused by public sector cuts and the fiscal problems the country is experiencing. This in turn leads to difficulties in working alongside each other:

Agencies (of the criminal justice system) that attempt to use volunteers as a form of cheap labour will ultimately provide benefits to no one: the volunteers will feel exploited, staff will feel threatened and demoralised, and ultimately service-users suffer. Not only that, but the volunteers will leave and may decide not to volunteer again in any way at all. (Neuberger Report, 2009: 17)

In 2011 the definition of domestic violence was considered again when the government started looking at ways to reduce the Legal Aid budget. It was anxious to protect Legal Aid for cases of domestic violence and forced marriage but was more circumspect about its use when domestic violence was an ancillary factor to other marital disputes; people in the latter circumstances were to only get Legal Aid when there was clear evidence of physical abuse. This narrowing of the definition to just ‘physical abuse’ was not welcomed and eventually the gov- Downloaded by [University of Defence] at 01:45 24 May 2016 ernment responded with a first-time ever legal definition of domestic violence: ‘“domestic violence” means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’ (Legal Aid, Sentencing and Punishment of Offenders Act 2012 s9 Schedule One para 12.9; for more on this see Chapters 1 and 6). This outline of the development of polices and law on domestic violence hopefully demonstrates how domestic violence has moved into the mainstream of thinking on crime and crime control. At the end of the day, criminal justice Law and policy 63 offers a partial response to domestic violence, not a solution; domestic violence may never be ‘resolved’ by the criminal justice system. As Falmer and Callan have put it:

The criminal justice system (CJS) recognises more than at any point previously the seriousness of crimes within a domestic context, and this owes much to campaigners against violence against women. However, in most cases of domestic abuse, the aims of the CJS to deliver justice, punish and rehabilitate offenders, and protect the innocent, remain elusive. Fundamentally the law and legal system were not designed with domestic abuse in mind and they still both misapply understandings of other sorts of crime to it. (Farmer and Callan, 2012: para 6.2)

A radical feminist critique of the role of the law surrounding domestic violence argues that law is man-made and as such does not account for or accommodate the needs of victims of domestic violence – an offence which is largely experienced by women (see MacKinnon, 2005). Radical feminist theory/activists have challenged the notion that law or crime control models alone can provide an answer to violence against women; instead they advocate a multi-agency response (see Chapter 7). Feminist activists and campaign groups such as Justice for Women and Southall Black Sisters have been instrumental in raising the profile of the inadequacy of the law in its response to domestic violence and in campaigning for law reform. Justice for Women has been at the forefront of campaigns in the UK to highlight the inadequate nature of the law surrounding domestic violence homicides. Campaigns have illustrated a double standard, in which men who kill their partners have traditionally been treated more leniently by the criminal justice system then when women have killed violent partners. In parallel, Southall Black Sisters have raised the profile of the law and the needs of black and minority ethnic women in the UK facing domestic violence.

Summary This chapter has tried to explain the evolving law and policies on domestic violence. The early campaigning by feminists has ended with the full mainstream criminal justice system taking on the question of domestic violence. The definition of domestic violence has expanded to include stalking, honour based violence Downloaded by [University of Defence] at 01:45 24 May 2016 and forced marriage and special domestic violence courts have been introduced. Having outlined some of the legal responses to domestic violence, the following chapter begins to look at the implementation of criminal law and examines the policing of domestic violence. 4 Policing

The most visible and probably best known agency of the criminal justice system is the police. They are available 24 hours a day and are a geographically universal service; they are symbolically powerful and can be a gateway to other agencies. For victims seeking criminal justice intervention the police have become the usual first agency of contact in situations of domestic violence and are significant for that very reason. A positive response from the police sends out a positive message that this is important business and a negative response sends an equally significant message that this is not important business. Police work in the field of domestic violence is both reactive and proactive. Reactive in that it moves from initially receiving a report or a complaint of an incident of domestic violence through to the arrest, detention, investigation and charging of a suspect. Proactive in that it involves a level of preventive work now being carried out by the police in order to protect women from male assault. In writing about the police we are aware of the criticisms that have been made of this organisation in the recent past. Some of these were referred to in Chapter 3. Jackson’s carefully researched history of women police officers in the 1950s and 1960s, for example, revealed the police to be largely disinterested in domestic violence:

Domestic violence – disputes between adult men and women in the private sphere – was not viewed as a police matter… reports of wife beating were not recorded as assaults and the CID often refused involvement in the 1950s and 1960s. (Jackson, 2006: 184) Downloaded by [University of Defence] at 01:45 24 May 2016

In the 1980s the police were criticised for giving domestic violence a low priority and almost regarding it as not ‘real’ crime. Whitaker believed the police had ‘always been reluctant to become involved in domestic disputes’ (Whitaker, 1982: 71) and research in Leeds concluded that ‘the most common outcome was that, after the police had listened to the woman’s account, either at home or at the police station, she heard nothing more’ (Hanmer and Saunders, 1984: 57). In their London based study Smith and Gray reported the Metropolitan Police to regard ‘domestics’ as ‘rubbish work’ where there was no clear ‘result’ (Smith and Gray, 1983: 64–6). Policing 65 Even Sir Kenneth Newman, Commissioner of the Metropolitan Police between 1982 and 1989, was reported to want the police to be less involved with rubbish work such as ‘domestic violence and stray dogs’ (cited in Radford and Stanko, 1991: 192; see also general criticisms of the police engagement with domestic violence at this time in Edwards, 1989; Dobash and Dobash, 1992). Thirty years on and the position has improved. In 2003 the Home Office were confident that:

In the past, some victims have felt that the police did not take domestic violence seriously, and that they received unsympathetic or insensitive treatment. In recent years, however, the police have been making strenuous efforts to improve their response to domestic violence. (Home Office, 2003a: 25)

One of the obstacles to progress often cited was that of the occupational culture of the police sometimes referred to as the ‘cop culture’ or ‘canteen culture’. The ‘occupational culture’ of the police is that informal culture that arises to help the police officer make sense of their day-to-day work. Occupational cultures are not peculiar to the police but exist in many occupations and professions as almost a quick reference guide to how the job is carried out. It puts the work in a context that complements the ‘official’ job description and the formal professional guidance that workers have. It also provides a form of internal solidarity between workers that includes its own language and values and is said to arise more promi- nently in work where there are particular elements of danger and risk involved. The significance of cop culture to the policing of domestic violence has been discussed and contested (Hoyle, 1998; Grady, 2002). The traditional ‘cop culture’ of the 1980s (see e.g. Holdaway, 1983) has been slowly challenged and changed when it has been unhelpful as in the description of domestic violence as ‘rubbish work’ and ‘not real crime’. This challenging has come from external and internal influences, by police questioning of their own values, criticisms based on research and by Home Office Circulars that have asked more of the police (Chan, 1996). Home Office circulars are non-statutory guidance to the police on matters of concern identified by the Home Office in discussions with the Association of Chief Officers of Police (ACPO). Police independence has to be carefully nurtured and protected and emphasis is always placed on the fact that this is ‘guidance’ and on the ‘discussions’ with ACPO to avoid any allegations that the government has Downloaded by [University of Defence] at 01:45 24 May 2016 any direct political control over the police and are telling the police what to do. ACPO also produces its own policy guidance to its members including guidance on domestic violence (see e.g. ACPO, 2008a and 2008b). The remainder of this chapter looks at: (1) the first reactive response of the police to the scene of a domestic violence incident, (2) the secondary response at the police station when a suspect has been detained and (3) other more proactive police responses to domestic violence. 66 Policing First police response Police organisation Any police officer working from a Basic Command Unit (BCU) may be called on to make an initial response to a report of a domestic violence incident, but since the early 1990s forces have been asked to appoint officers with specialist knowledge of domestic violence working from designated teams usually called Domestic Violence Units (DVUs) (Home Office, 1990a). Specialist Domestic Violence Officers from the DVU are in a position to make initial responses, offer investigative advice to other officers reacting to an immediate case of domestic violence but also to make a secondary and more in-depth response as well as looking at building histories and patterns of behaviour that could initiate further police interventions. Domestic Violence Units and their specialist officers often struggled in the early days to get their work recognised by other officers for whom domestic violence still ran against the grain of mainstream policing. Their feelings of marginalisation were the subject of research studies:

We all do our own thing in this position. Nobody would have a clue if I was doing nothing. As it is I’m tearing my hair out… There is no credibility in dealing with domestic violence as far as my colleagues are concerned. (Plotnikoff and Woolfson 1998: 11–12)

The DVU has none the less slowly found its place within the police organisation to offer either a first reactive response or a secondary more pro-active response.

Reporting to the police Victims of domestic violence have been noted to be reluctant to make that initial contact and involve the police. Victims employ a range of coping strategies and seek other less formal avenues first rather than taking the big step to ask for police help (Kelly et al., 1999). Research in the 1980s found that lack of confidence in the police, experiences of their seeming indifference and fear of authority generally militated against a woman making the decision to report to the police or indeed any other agency (Borkowski et al., 1983). Changes of policy since then have encouraged more reporting as have the introduction of Downloaded by [University of Defence] at 01:45 24 May 2016 better police training, improved trust amongst the public and the greater awareness of the need for forensic evidence. None the less recent figures show that still only an estimated 25 per cent of women report abuse by a partner to the police (CPS, 2012). Initial calls to the police requesting help in domestic violence incidents are expected to be responded to as soon as possible. The following is taken from an HM Inspectorate of Constabulary report on the Thames Valley Police response in the Oxfordshire area: Policing 67 Control room staff on receiving the initial report of a domestic incident, record the details on the command and control system. If the initial assessment is that urgent attendance is required, then officers should attend within 15 min- utes of the call. Control staff carry out a history check, which gives the last three months of previous incidents, and pass on those details to the responding officers. Attending officers are informed of bail conditions. The controllers also flag the incident to the DV officers and start a skeletal crime report. All DV incidents are responded to as immediate or urgent (force standard operating procedure two). If any other type of response is more appropriate – e.g. because of identified safety reasons – then the operator can seek the room supervisor’s approval to deviate from the standard operating procedure. When a call has been graded as urgent, it cannot be downgraded by the operator, as it requires a supervisor to agree to that course of action, which will delay officer attendance. When a call is received in the control room that is historic – not requiring an urgent attendance – then an appointment can be made for officers to attend at a later time. In this case, the control operator must inform the room supervisor for agreement. (HMIC, 2007: 45)

Tapes of 999 calls may be used later as evidence in domestic violence cases especially if they reveal the demeanour of the caller and any background noise or comments. Police are expected to ensure they are kept secure and if useful made available to the Crown Prosecution Service (ACPO, 2008a: para 4.3.3). Sexual Assault Referral Centres (SARCs) have been developed jointly with the health services and other agencies to provide victims of sexual assault with immediate medical help, counselling, forensic examinations and the opportunity to give evidence to the police in a supportive environment (Home Office et al., 2009). SARCs could often also be used for domestic violence reporting. In 2008 there were 22 SARCs and the Home Office announced a further £1.6 million would be made available to ensure every person in the country has access to a SARC; ten new SARCs were to be built and £100,000 was earmarked for a team of experts to be created consisting of police, CPS, the Forensic Science Service and an experienced SARC manager to target and assist areas with no SARC (Home Office, 2008a).

Downloaded by [University of Defence] at 01:45 24 May 2016 At the scene Police arriving at the scene of domestic violence who are denied access to a household have common law rights of entry to prevent or deal with a breach of the peace. Statutory powers of entry also exist in order to arrest a person for an indictable offence or to save life or limb (Police and Criminal Evidence Act s17 (1) (b) and (e)). The first police response officers to arrive on the scene have to identify the victim, the suspect, any other witnesses and anyone else present. The protection of the victim from further injury takes priority and the police have long been 68 Policing advised that it is their ‘immediate duty… to secure the protection of the victim and any children from further abuse and then to consider what action should be taken against the offender’ (Home Office, 1990a: para 8). Further than this the officers should on arrival:

• distinguish violent from non-violent incidents • check any previous history of the relationship • protect the victim by using refuge facilities etc. • always consider the arrest of the assailant • establish whether there are any other victims. (ibid.: paras 12–17)

More recently ACPO has given detailed advice that includes making an immediate assessment of the need for first aid or other medical assistance (at a SARC, through a police forensic medical examiner (FME) or NHS facility), confirm the identity of the suspect and if they have left the scene ensure a description is circu- lated and at the same time find out what more is known about them from existing police intelligence. The officer is also expected to make accurate records of everything said by all parties present, to record the demeanour of the suspect, victim and any other witnesses and to consider taking photographs or making appropriate video recordings (ACPO, 2008a: para 3.4). All of this initial police response should be taken within the context of what the police term ‘a duty of positive action’. This phrase has emerged from a greater understanding of human rights. The Human Rights Act 1998 and the European Convention on Human Rights’ Article 2 (the right to life), Articles 3 (the right to not be tortured) and Article 8 (the right to privacy) all have particular relevance to domestic violence.

The requirement for positive action in domestic abuse cases incurs obligations at every stage of the police response. These obligations extend from initial deployment to the response of the first officer on the scene, through the whole process of investigation and the protection and care of victims and children. Action taken at all stages of the police response should ensure the effective protection of victims and children, while allowing the criminal justice system to hold the offender to account. (ACPO, 2008a: para 3.1) Downloaded by [University of Defence] at 01:45 24 May 2016

Complaints have been made that the police have sometimes been slow to arrive at a scene of domestic violence or slow to take action and on occasions that has been with fatal results (see e.g. Rose, 2007). The Independent Police Complaints Commission say that allegations of police failure to help in incidents of domestic violence have risen and according to their website they now make it one of six priority areas of police work to come under their scrutiny (IPCC http://www.ipcc. gov.uk/en/Pages/deaths-serious-injury-gender-abuse-and-domestic-violence. aspx, accessed 27 July 2012). Legal attempts to later hold the police who make a Policing 69 poor response, liable for deaths in cases of domestic violence have been unsuccessful (Barton, 2009).

Box 4.1 Julia Pemberton case study Julia Pemberton, a health visitor in Newbury, Berkshire, had been married to Alan Pemberton for 23 years but told him in September 2002 that she wished to separate from him; his behaviour had been overly controlling and coercive. Over the next year he left the family home but his behaviour became increasingly aggressive and obsessive towards his estranged wife. Julia sought police help on a number of occasions but received only advice. She told a friend: ‘When my son’s bike was stolen, two police officers turned up at my door. When my husband threatened to kill me, nobody wanted to know.’ It did not appear to her that the police viewed her husband’s behaviour as serious. On 18 November 2005 Alan Pemberton came to the house and shot his son William aged 17 outside and entered looking for Julia. She was hiding in a cupboard making a phone call to the police for help. Alan found her and shot her dead before turning the gun on himself. The Inquest later heard extracts from Julia’s 999 call: Julia, hidden in a cupboard, desperately whispers into the receiver: ‘I heard another bang, he’s letting off guns. He’s banging down the front door. Please help me. My son could be dead ... He’s coming through the door. Oh God, I’ve got about one minute before I die. Please’. It was another six hours before the police entered the house. (‘The family no one could save’, The Guardian 7 June 2005)

Box 4.2 Hayley Richards case study In Trowbridge the Wiltshire police were criticised for their lack of

Downloaded by [University of Defence] at 01:45 24 May 2016 response to protect Hayley Richards aged 23 who was killed by her boyfriend Hugo Quintas aged 24 in June 2005. Hayley had sought their help before the murder telling police she was ‘petrified’ of him. Two arrest opportunities were not taken by the police. A spokesman for the IPCC later said ‘the police failed to give a victim of domestic violence the priority and protection she deserved’. Chief Constable for Wiltshire Martin Richards made a public apology. (Savil, 2006) 70 Policing The police are expected to assess the position of any children at the scene and to ensure their safeguarding if that is necessary (ACPO, 2008a: para 3.6).

Arrest The individual police officer has the discretion to make an arrest at the scene of any possible crime, dependent on his or her assessment of the situation. No one can tell the police they ‘must’ make an arrest of a certain person unless they are acting on a warrant issued by the courts. Constitutionally this is the position of the British constable and of constabulary independence. The police arrest of men suspected of abusing their wives or partners has always been a contentious area. As we noted in Chapter 3 the official line has always been that ‘assaults in the home are just as serious as assaults in other places and that those citizens who call the police to their aid… are entitled to the full protection of the law’ (House of Commons, 1975: para 44). This left the officer at the scene with the task of balancing the evidence before him or her. In the USA the state of Oregon had been the first to introduce mandatory arrest in 1977 and at a federal level the Attorney General’s Task Force on Family Violence recommended arrest as the preferred option in 1984 (Attorney General, 1984). In 1994 President Clinton’s ‘Violence against Women Act’ tried to encourage pro-arrest or mandatory arrest policies by providing extra federal funding for states with such policies. The idea of mandatory arrests has not been pursued in the UK because it left officers with no discretion – so they could not take into account the wishes of the victim – in turn this could also lead to women not reporting for fear of an excessive police response – or potential retribution from partners (Buzawa and Buzawa, 1990). In practice arrests in the past have sometimes been few and far between. Edwards found only a 2 per cent arrest rate in her 1989 research and put this down to the traditional ‘cop culture’ (Edwards, 1989). The situation had to be really serious and there had to be a good chance of a successful prosecution before the police would arrest. The police were particularly wary of the victim withdrawing their complaint rendering evidence less useful. A senior police officer had outlined the problem:

We go to the scene then the woman backs out. A fortnight later we are called Downloaded by [University of Defence] at 01:45 24 May 2016 again because he [the husband] is doing the same thing again. You have to appreciate how a police officer feels when he or she goes to the same scene over and over again and the woman backs out. (cited in Borkowski et al., 1983: 115)

A vicious circle was established whereby police became ambivalent that no action would be taken because of anticipated withdrawal and women picked up on this ambivalence, lost confidence in the police and did not report in the first place. The result was the police description of domestic violence as ‘rubbish work’. Policing 71 One tendency noted in the past was the police refusing to take any action and recording the case as ‘police action not required’. This in effect was a way of ‘down criming’ or ‘no criming’ the behaviour encountered (Edwards, 1989). Research by Grace after the 1990 Home Office Circular (Home Office, 1990a; see Chapter 3) found that 75 per cent of police officers on finding the man still at the scene ‘would attempt to cool down the situation without necessarily making an arrest’ (Grace, 1995: 20). In a further attempt to get the police to take domestic violence more seriously, the Home Office advised the police to adopt an attitude described as ‘pro arrest’ in an attempt to bring the idea to the forefront of their thinking but still falling short of making it mandatory (Home Office, 2000a). Today, as we have seen, the ‘duty of positive action’ must also be a factor in determining the need for an arrest. The actual law on arrest is to be found in the Police and Evidence Act 1984 (usually referred to as PACE) (ss24–24A) as amended by the Serious Organised Crime and Police Act 2005 (ss110–11):

S24 (1) A constable may arrest without a warrant – (a) anyone who is about to commit an offence; (b) anyone who is in the act of committing an offence; (c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be committing an offence. (2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. (3) If an offence has been committed, a constable may arrest without a warrant – (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

The Domestic Violence, Crime and Victims Act 2004 s10 had changed the law to make common assault an arrestable offence. This was to encourage arrests in domestic violence situations and had been recommended by the Safety and Justice proposals:

Downloaded by [University of Defence] at 01:45 24 May 2016 If, as is not uncommon, the alleged offender has already left the scene and the victim is not visibly injured and is unwilling to proceed, officers have no legal grounds on which to find and arrest the offender. Doing so would require the prior issue of an arrest warrant. (Home Office, 2003a: 26)

The answer was to make common assault an arrestable offence. The Serious Organised Crime and Police Act 2005 ss110–11 went further and amended the Police and Criminal Evidence Act s24 to make all offences arrestable. 72 Policing In addition ‘any person’ may arrest somebody in the act of committing an offence or whom he or she has reasonable grounds for suspecting to be committing such an offence (Police and Criminal Evidence Act 1984 s24A). The wording that ‘any person’ may arrest retains the idea that the police officer is just a citizen in uniform and that any one may complete a ‘citizens’ arrest’. ACPO 2008 guidance states that:

Where an offence has been committed in a domestic abuse case, arrest will normally be ‘necessary’ within the terms of PACE to protect a child or vulnerable person, prevent the suspect causing injury and/or allow for the prompt and effective investigation of the offence. (ACPO, 2008a: para 3.1)

The police have been asked to now record the reasons why any arrest did not take place (ibid.: para 3.10). Men arrested for alleged assaults constituting domestic violence have to be removed to a police station as soon as practicable. Here they will be held in the custody suite overseen by the custody officer. The situation is complicated where one party claims victim status and another makes a counter allegation. The ACPO guidance (ACPO, 2004) recommends that officers should identify the primary aggressor and that ‘dual arrest should not be made in instances of counter allegation where one party is acting in self-defence’ (Hester, 2009: 2–3).

Secondary police response The police secondary response is conducted mainly from the police station where the suspect may be detained and questioned and where police activity seeks to develop the investigation.

Detention and the investigative interview The custody officer was a police role created by the Police and Criminal Evidence Act 1984 s36; before that such officers were often referred to as gaolers. While the investigating officers who attended the scene and made the arrest continue their questioning and investigation of the crimes, the custody officer is concerned with general aspects of the detention and overall welfare of the person held (for legal Downloaded by [University of Defence] at 01:45 24 May 2016 definitions of the custody officer role see Police and Criminal Evidence Act 1984 s37 (7) and s47 both as amended by the Criminal Justice Act 2003 Schedule 2). The custody officer makes any decisions to hold an arrestee in police detention. The detainee has the right to have someone told of his detention and the right to legal advice during the detention and questioning (PACE 1984 ss56 and 58); the time periods for detention without charge are clearly outlined in the Act (PACE 1984 ss38–44). An accompanying Code of Practice tells detainees their entitlements while held by the police and a copy should be made available to them (the latest edition was published in 2012 and is available at https://www.gov.uk/ Policing 73 government/organisations/home-office/series/police-and-criminal-evidence-act- 1984-pace-current-versions, accessed 4 April 2013).

Police statements The police statement is evidence of what happened from the point of view of the suspect, victim or any other victim. Individuals may write their own statements but it is invariably the police who write it on the basis of what they are told. The person concerned then signs the resultant statement to say it is a true record. Statements from victims in domestic violence cases have taken on certain significance. They are important because they are often statements from the sole witnesses when something has happened in the privacy of the home and that makes the statement the leading piece of evidence. Sometimes the police have not even looked for corroborative evidence placing all their faith in the statement. The associated problem then arises if the victim/witness withdraws that statement. Women have withdrawn their statements for a number of reasons including fear of retaliatory violence, the threat to their financial security, reluctance to criminalise a partner, hopes for reconciliation, fear of alienation from families and communities, concern for the welfare of children and the belief that court sanctions were ineffective and not worth it (see Robinson and Cook, 2006). The Police and Criminal Evidence Act 1984 s80 gave the courts powers to compel women to give evidence in cases of violence and sexual offending in order to try and break the vicious circle where women withdrew their evidence. In practice the police have been reluctant to use this power which effectively just created a ‘hostile witness’ whose evidence was suspect. The Criminal Justice Act 1988 s23 further allowed a victim of violence to give evidence in writing if they were too frightened to appear in court. Training for the police was increased (see e.g. Southgate and Marden, 1988) but again s23 was rarely used especially when there was no other supporting evidence (Edwards, 2000). A continuing criticism of the police has been their over-reliance on witness/ victim statements and testimony rather than constructing a case with other evidence such as photographs, witnesses, medical evidence, etc. Hoyle (1998: 152) had noted the variation between officers and forces in this respect in a study of 400 cases; a 1998 HM Inspectorate of Constabulary report said: ‘The state needs to take greater responsibility for the gathering of evidence, and take responsibility Downloaded by [University of Defence] at 01:45 24 May 2016 away from the domestic violence survivor’ (cited in Harne and Radford, 2008: 19). ACPO guidance places the development of evidence in the context of the duty to offer positive action (ACPO, 2008a: section 4). The police are also expected at this early stage to identify the potentially vulnerable or intimidated witness. Most of the literature on vulnerable and intimidated witnesses has focussed on the Crown Prosecution Service and the courts themselves (see Chapters 5 and 6). The Ministry of Justice has none the less sought to remind the police of their role and their need for awareness when it comes to the vulnerable and intimidated witness and the pursuit of ‘best evidence’: 74 Policing The identification of a vulnerable or intimidated witness at an early stage of an investigation is of paramount importance. It will improve the quality of an investigation by assisting the witness to give information to the police; it will assist the legal process by assisting the witness to give their best evidence in court. (MoJ, 2011a: para 1.7; see also MoJ, 2011b)

Those who have been the subject of domestic violence can easily include those to be identified as intimidated (MoJ, 2011a: para 3.3.2). The police are advised to tell the vulnerable or intimidated victim witnesses about the possibility of ‘special measures’ being available in court but at the same time being careful not to ‘guarantee’ their provision because that is ultimately a CPS decision to apply for them and a court decision to grant them; it is not a police decision (see Chapters 5 and 7).

Other sources of evidence The police are expected to collect other evidence of criminal activity to support statements from victims. This might include evidence of blood or other liquids and their distribution at the scene of a crime, damage to clothing, furniture or bedding or other evidence of a disturbance, DNA samples, fingerprints and evidence of weapons that might have been used. Photographic evidence of injuries and medical reports from health care professionals are all considered important to corroborate a statement (ACPO, 2008a: paras 4.3.1–4.3.2). Further, some specialist women’s support services also encourage women to keep their own record of experiences of violence and reports of incidents.

Victim Personal Statements A Victim Personal Statement is a statement by the victim explaining the effect the crime has had on them and is distinct from the formal statement described above. The police invite the victim to make this statement but it is an optional matter. It should contain details about their current safety, intimidation or their views on the defendant’s bail status. It may include their views on their support for a prosecution, the need of other help; it must not contain views on what any final court punishment should be. Downloaded by [University of Defence] at 01:45 24 May 2016 The VPS will take the form of an additional section added to the end of the witness statement, lined off and clearly separate, with its own heading. The victim can provide a separate statement at any time describing any longer term effects of the crime. This may be in addition to any initial statement or it may be the first statement that the victim provides. While the VPS scheme encourages the victim to say as much as he or she wants to say, in his or her own words, the guidance issued to police officers does allow the officer taking the statement to offer some general advice as to what the victim could include, for example, express legitimate concerns such as feeling Policing 75 vulnerable or intimidated. The officer should also explain the limitations of the scheme, especially the fact that a court cannot take account of the opinions of the victim so far as sentence is concerned. Nevertheless, while the officer can give general advice, it is ultimately for the victim to decide what information to include in his or her VPS. The coalition government has stated its intention to review the Victim Personal Statement over the next few years to improve understanding of its purpose and increase the number of victims able to make an informed decision, at the appropriate time (for more on this see Chapter 6).

At the end of police detention At the end of a police interview when the suspect had been detained the police have a number of options open to them:

• To release a detainee and take no further action. • To release a detainee on Police Bail pending further actions (sometimes referred to as ‘investigative bail’). Police Bail requires the person concerned to return to the police station as required and may include the imposition of bail conditions. • To release a detainee on Police Bail with conditions; the bail may have other conditions attached; reasons for the conditions should be stated in the custody record (PACE 37(2)). • To arrange for the further detention of the suspect with a view to charging someone to appear before the nearest available magistrates court.

Conditional police bail was recommended by the 1993 Royal Commission on Criminal Justice to try and avoid too many police detentions taking place overnight. The pre-existing law had allowed the police to only offer unconditional police bail to a certain date or detain the suspect overnight. The resulting Criminal Justice and Public Order 1994 s27 (which amended s47 of PACE and s3 of the Bail Act 1976) made it easier for CPS, solicitors and magistrates courts by not having their schedules disrupted by ‘overnight remands’ (especially on a Monday). The formal stated purpose of Police Bail was to prevent a person:

(a) failing to surrender to custody, or Downloaded by [University of Defence] at 01:45 24 May 2016 (b) committing an offence while on bail, or (c) interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person. (Bail Act 1976 3A as amended by the Criminal Justice and Public Order 1994 s27)

In deciding what conditions to impose the police should consult the victim of domestic violence (or any other crime) in order to finalise what those conditions should be to help the victims (ACPO, 2008a: para 5.3.5): ‘Custody Officers 76 Policing should ensure that bail conditions help to protect victims, children and witnesses from intimidation and abuse and do not conflict with existing court orders’ (ibid.). The conditions should be justifiable and capable of being effectively policed for compliance (Police and Criminal Evidence Act 1984 s47 (3A) – as amended by the Crime and Disorder Act 1998 s46 (2)). The custody officer has a wide discretion to impose any conditions he or she wishes except residence in a bail hostel but in practice most conditions include:

• a condition of residence at a particular address • a condition to have no contact with named people • a condition to be excluded from a given geographic area (see also Domestic Violence Protection Notices on page 77) • a condition of not going within a specified distance of the victims’ home or workplace • a condition to report to a named police station on specific days of the week at specified times.

The Criminal Justice and Public Order Act 1994 s29 further empowers the police to arrest for breach of any conditions they have attached to police bail. One of the problems here is that such breaches are not offences in themselves and the arrest leads only to a reassessment of the need for bail; if a court appearance is imminent it may not seem worthwhile. Critics of police bail and bail with conditions point to the lack of judicial oversight and due process because a police officer is making these decisions to restrict liberty and not the courts. There is a lack of scrutiny and often informed representation is not present. The decisions are made quickly and on limited information by one person and police officers who lack specialist training may just take their line from the investigating officer. Police bail and bail with conditions may also be used by the police as a tool for ensuring cooperation or as summary justice. Bail conditions are often not challenged with any rigour because they are almost always seen as better than further detention in the police station. The final option at the end of a period of police detention is that of arranging for the further detention of the suspect with a view to charging him or her to appear before the nearest available magistrates court.

Downloaded by [University of Defence] at 01:45 24 May 2016 Charging Once the police have fully investigated what has happened, looked at who was responsible and have decided they have sufficient evidence to lay before a court a decision to charge the suspect has to be made. A charge is an ‘accusation’ or ‘allegation’ that a criminal offence has been committed. The charge is usually made verbally by the Custody Office in the form of words ‘that on a given date you did A, B or C in contravention of the X Act’; the charge is also written down and forms part of the police ‘charge sheet’. People released from police detention may later be charged in writing by a ‘written charge’ (Criminal Justice Act 2003 s29). Policing 77 At one time the decision to charge was one entirely for the police but today it is made by the Crown Prosecution Service (CPS) following discussions with police. The CPS will decide on whether the person should be charged and what that charge should be; they decide if the evidence is sufficient to detain someone to the next available court, whether the evidence is good enough to go to court and the CPS ultimately prosecute the case in the court (for more on this see Chapter 5). CPS guidance is available to the police station either directly or through such arrangements as the telephone service CPS Direct (see Chapter 5). The police are still authorised to charge any one for a Summary Only offence; Summary Only means the less serious cases that could include common assault. One of the exceptions to this rule is when a case is classed as domestic violence when the decision is passed to the CPS regardless of how minor it may appear (CPS, 2013: para 19). A charging decision linked with further police detention and appearance in the next available court, but where complete evidence is still being collected, requires the CPS to consider whether the Threshold Test has been met i.e. there is a reasonable suspicion that an offence has been committed. Other factors to be taken into account include whether:

• the suspect’s name and address cannot be ascertained • the suspect is regarded as unlikely to appear in court to answer the charge • interference with witnesses or other obstruction of justice is likely • it is thought that the suspect would commit another offence.

If these conditions apply the police may detain the charged person for the next available magistrate’s court. This is a decision for the custody officer as to what might happen if release takes place. In effect it is a ‘prediction’ based on what is known about the defendant, what is said by the investigating officer, and – if one is present – what is said by the detainee’s solicitor.

Domestic Violence Protection Notice The arrest of a male perpetrator immediately removes him from a household and enables the victim to continue living there without the need for recourse to injunctions, refuges or other alternative living arrangements. Domestic Violence Protection Notices (DVPNs) have been introduced to achieve the same end with- Downloaded by [University of Defence] at 01:45 24 May 2016 out the need for an arrest; they may be used before releasing someone from police detention or without having arrested them in the first place. The idea of some form of police emergency expulsion from the home had been considered by a Department of Constitutional Affairs paper as far back as 2004. The idea was based on the idea of ‘go-orders’ used in Austria and Germany and was put back on the agenda by Chief Constable Brian Moore’s ACPO report in 2009. Moore’s report suggested the police have powers to exclude a perpetrator for up to 14 days to prevent him going back to a house within hours of an arrest and release from police detention. It was accepted that this was a big imposition 78 Policing on someone who may not yet have been charged or convicted of any offence (ACPO, 2009; see also Chapter 3). The Domestic Violence Protection Notices and the Domestic Violence Protection Order were brought into law by the Crime and Security Act 2010 sections 24–33. The Notice was to be used by the police who then had to apply to a court within 48 hours for an Order which could be made for 14 to 28 days. Pilot schemes were to be trialled in Greater Manchester, West Mercia and Wiltshire police from 30 June 2011 for a 12-month period and Interim Guidance for the police was issued by the Home Office (Home Office, 2011c). The DVPN was to be issued by an officer of at least superintendent rank who would be referred to as the ‘authorising officer’. The Notice would be issued if there were reasonable grounds for believing that the perpetrator had been violent or had threatened violence to the victim and the Notice was necessary to protect that person. Apart from the victim particular attention was to be paid to any children in the household. Once issued an automatic application was made to the courts for a Domestic Violence Protection Order and in the meantime a person in breach of the Notice could be arrested (Home Office, 2011c; for more on the Order see below). It is perhaps worth noting here that local authorities have, since the mid-1990s, been able to apply to magistrates for people to be excluded from a home if they present a threat to a child (Children Act 1989 s44A as amended by the Family Law Act 1996 s52 and Schedule Three) and have had powers to assist such people to voluntarily leave a household since the original implementation of the Children Act 1989 in 1991 (Children Act 1989 Schedule Two para 5).

Other police responses Police cautions The police have a long tradition of administering what used to be called ‘formal cautions’ to adult offenders which avoids them having to go to court. The aim of the caution is to deal quickly and simply with less serious offenders, to divert them from unnecessary appearances in the criminal courts and to reduce the chances of their re-offending. Cautions are now classified as either simple cautions or conditional cautions.

Downloaded by [University of Defence] at 01:45 24 May 2016 Simple cautions ‘Simple cautions’ are administered as a ‘warning’ by a police custody officer or other trained senior officer and although it is not a conviction it does get recorded as part of a person’s criminal record and could be cited later in court as part of a person’s antecedents and as part of a pre-employment Disclosure and Barring Service check (formerly known as a Criminal Records Bureau check). The criteria that must be met are outlined by the Home Office to the effect that: Policing 79 • there must be sufficient evidence to bring charges and give a realistic prospect of conviction • the offender has admitted the offence • the offender is over 18 • it is in the public interest to use a caution. (Home Office, 2008b; see also OCJR, 2007: 8–9)

The police must not coerce someone into admitting offences that he or she has not committed. A person who does not admit an offence cannot be cautioned. Simple cautions have been used in cases of domestic violence and for sexual offences and the Home Office guidance does not explicitly prohibit their use. In general terms the Home Office advises that:

the simple caution is not appropriate for the most serious violence against the person offences. However, where an offence of personal violence is not accompanied by any aggravating factors and where the victim does not support a prosecution, the offence may be suitable for disposal by simple caution, providing all other criteria are met. (Home Office, 2008b: para 56)

A growing consensus, however, is that ‘simple cautions’ are not suitable for incidents of domestic violence. The Association of Chief Police Officers state that ‘cautions are rarely appropriate in Domestic Violence cases’ (ACPO, 2008a: para 5.3.3) and their position is supported by the Crown Prosecution Service (CPS, 2009: para 6.4). A Domestic Violence Protection Notice may be given to someone who has received a simple caution (Home Office, 2011c: para 3.3.3). A caution for a sexual offence will require the offender to be on the sex offender register for two years (Sexual Offences Act 2003 s82 (2); Home Office, 2008b: para 36).

Conditional cautions Conditional cautions were introduced by Part Three of the Criminal Justice Act 2003 and implemented from March 2008; simple cautions are based only on Home Office circular administrative guidance and have no underpinning in statutory law. Downloaded by [University of Defence] at 01:45 24 May 2016 The offender agrees to accept and complete conditions attached to the caution. This effectively suspends any criminal proceedings while the offender is given the opportunity to complete the agreed conditions. Successful completion means there will be no prosecution but failure to complete may well result in a prosecution to replace the conditional caution. The formal position has been stated that conditional cautions may not be given in domestic violence cases (CPS, 2013: para 3.1); this position has however been challenged of late (see Chapter 5). 80 Policing Only a CPS prosecutor can authorise a conditional caution and not a police officer, although the police will have the role of actually administering the conditional caution. Implementation has to follow CPS guidelines and for this reason we consider the conditional caution further in Chapter 5 covering prosecutions and the work of the Crown Prosecution Service.

The police and protective orders Protective orders include those applied for by the police as well as injunction orders made in civil family proceedings which may involve the police if they are breached. This has been the case since the original injunctions made available by the 1976 Domestic Violence and Matrimonial Proceedings Act s2, and the 1978 Domestic Violence and Magistrates Courts Act s18 and later by their successor the Family Law Act 1996 s47. The courts had the discretion to attach powers of arrest under the 1970s laws. The 1996 Family Law Act went further and said the courts must add a power of arrest to a non-molestation order or an occupation order if the person concerned had used or threatened violence against the applicant unless they were satisfied that the applicant was adequately protected. Research on the early injunctions found that ‘judges were reluctant to attach powers of arrest’ (Hague and Malos, 1998: 81) and the White Paper Safety and Justice confirmed the views of many when it reported dissatisfaction with the way these ‘attached’ powers of arrest worked in practice:

given that the power of arrest is often only attached to specific parts of an order, police officers may be unclear whether they can arrest the respondent or not. Moreover, information on orders and powers of arrest is not recorded centrally and the arrangements for passing such information between police forces can be inconsistent. If no power of arrest was attached, the victim has to apply to the civil court for an arrest warrant, which can put the victim at risk of further violence until the warrant is issued. (Home Office, 2003a: 33)

Today there are five main protective orders applicable to situations of domestic violence – the Non-Molestation Order, the Occupation Order, the Restraining Order, the Violent Offender Order and the Domestic Violence Protective Order. Downloaded by [University of Defence] at 01:45 24 May 2016 The Anti-Social Behaviour Order (ASBO) is not really appropriate for situations of domestic violence being aimed at people ‘not of the same household’ (Crime and Disorder Act 1998 s1 (1) (a)).

Non-molestation order Applicants for non-molestation orders want the Order to get the molestation to stop; molestation itself is not defined in either the original Domestic Violence and Matrimonial Proceedings 1976 that introduced the Orders or the Family Law Act Policing 81 1996 (ss42) where the current law is to be found. Molestation has been accepted to include acts of violence, threatening violence, intimidation, pestering and harassment (see e.g. Davis v. Johnson [1979] AC 264 HL341) and Johnson v Walton [1990] 1 FLR 350 CA). The 1996 Act permitted powers of arrest to be added to an Order. The report Safety and Justice recommended the law be changed to automatically criminalise the breach of a non-molestation order and an occupation order without the need for attachments (Home Office, 2003a: 34). The Domestic Violence, Crime and Victims Act 2004 s1 put part of this recommendation into law by inserting a new s42A in to the Family Law Act 1996. The new automatic arrests would only apply to non-molestation orders and not occupation orders (see below); it was argued that violence or molestation was not necessarily a prerequi- site for granting an occupation order so the attachment of a power of arrest should remain with the discretion of the judge as it had been under the 1996 Act.

Occupation order Applicants for occupational orders are trying to establish their rights to occupy a home at times of domestic violence. The granting of an Order by a court gives the applicant a right of residence and may exclude the perpetrator of the violence or if they have left prevent their re-entry to the home. Occupational orders were originally introduced by the 1983 Matrimonial Homes Act but the law on them is now to be found in the Family Law Act 1996 ss33–41. Powers of arrest may be attached to an occupation order and the person arrested if they breach it; breach is not a criminal offence and the person concerned is answerable to the court who made the Order.

Restraining order The restraining order could be added to a conviction for persistent stalking behaviour causing harassment or fear of violence; the Order sought to prevent future harassment or fear of violence. Breach of a restraining order was an automatic criminal offence and no powers of arrest needed to be attached (Protection of Harassment Act 1997 s5). More controversially the Domestic Violence, Crime and Victims Act 2004 allowed restraining orders – with their automatic right to arrest if breached – to be Downloaded by [University of Defence] at 01:45 24 May 2016 made on any offence and not just those relating to stalking behaviour; even more controversially it also provides for restraining orders to be made following an acquit- tal (Protection of Harassment Act 1997s5A as amended by Domestic Violence, Crime and Victims Act 2004s12 and implemented from 30 September 2009).

Violent Offender Orders Violent Offender Orders (VOO) were introduced by Part 7 of the Criminal Justice and Immigration Act 2008. The police make application for them on people who 82 Policing have committed ‘specified offences’ living in their area to local magistrates courts if they believe that that person has ‘acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of the person’ (Criminal Justice and Immigration Act 2008 s100). ‘Specified offences’ include:

• manslaughter • offences against the person • wounding with intent • malicious wounding • attempting to commit murder or causing conspiracy to commit murder. (Criminal Justice and Immigration Act 2008 s98 (3))

The offender should have received a prison sentence of at least twelve months. Anyone who has received a similar sentence for equivalent offences committed overseas may also be liable for a VOO application. The court agreeing to an application makes the VOO which

contains such restrictions, prohibitions or conditions authorised by Section 102 as the court considers necessary to protect the public from the risk of serious violent harm caused by the offender and have effect for a period specified by the court of not less than 2 nor more than 5 years. (Home Office, 2009: para 7)

The police keep a record of those on VOOs in their area and those subject to a VOO have to notify the police of any changes in their address or other circumstances in exactly the same way as those sex offenders who are required to notify changes to the sex offender register (Criminal Justice and Immigration Act 2008 ss07–112; see also Home Office, 2009).

Domestic Violence Protection Order The Domestic Violence Protection Order is one step on from the police administered Domestic Violence Protection Notice (see above). Introduced by the Crime and Security Act 2010 sections 24–33, the Order is applied for by the police in the magistrates’ court and follows on from the Notice; if granted the Downloaded by [University of Defence] at 01:45 24 May 2016 Notice expires and the Order takes over and can last from between 14 and 28 days. Breach of the Order is not a criminal offence but can lead to a police arrest for contempt of court; pilot schemes were being run between June 2011 and 2012 (Home Office, 2011c). One of the problems of policing and enforcing all of these protective orders is whether or not the police know they exist for a given person at a given time. If a non-molestation order has been granted to an individual applicant an administrative system needs to be in place to advise the police of its existence. Problems were noted in the early days of Orders like this but digital advances in technology Policing 83 including the development of the Police National Computer and the Police National Database has hopefully improved the situation.

Other police interventions The police have looked at ways of being more proactive in reducing domestic violence. Some of the more well-known initiatives are considered here. If the late 1970s and 1980s had seen the ‘discovery’ of the victim, a phe- nomena now brought to light in the 1990s was that of the ‘repeat victim’ and ‘repeat victimisation’. This was the realisation that certain sections of the popula- tion were more liable to be victims of crime on a regular basis than other people (Farrell and Pease, 1993). The crime could be burglary or criminal damage but this model of looking at crime also lent itself to domestic violence. Prompted by circular 66/90 the police now took part in three high profile projects to reduce the chances of repeat victimisation. In Liverpool women were given alarms that would alert the police to make early interventions and the police started a database to assist their response (Lloyd et al., 1993; Farrell and Buckley, 1999); the idea of CCTV in a household was first considered at this time (Casey, 1993). In London a project entitled ‘Domestic Violence Matters’ was an attempt to improve the police response repertoire by bringing a multi-agency focus, including non-police officers, to assist the police (Kelly, 1999). Later these would evolve into the Multi Agency Risk Assessment Conferences or MARACs (see Chapter 7). In Leeds the Domestic Violence and Repeat Victimisation Project was implemented by the West Yorkshire police Killingbeck Division and involved a three-level intervention pattern:

1 After a first attendance by the police, letters were sent by way of follow up. 2 A second attendance as followed by a visit and the setting up of a Cocoon Watch consisting of family, neighbours and other agencies being willing to contact the police immediately if incidents occur. 3 A third attendance led to Police Watch which provides a visible police presence to both victim and offender with e.g. police cars cruising by twice a week.

The overall aim was to protect the victim and de-motivate the offender. ‘No Further Action’ was no longer an option. The West Yorkshire police had the Downloaded by [University of Defence] at 01:45 24 May 2016 advantage of a domestic violence database they had been maintaining since 1989. The Killingbeck Project was a success and reduced the need for police repeat attendances. It also increased the time intervals between attendances and identified chronic offenders (Hanmer et al., 1999; see also ACPO, 2008a: para 5.4.6).

Domestic Violence Enforcement Campaigns Another police initiative has been the use of Domestic Violence Enforcement Campaigns. These can be carried out at any time but have been particularly used 84 Policing at Christmas periods when family frictions can run high. Over Christmas 2008–9 for example, such a campaign ran for four weeks in selected areas funded by the Home Office to the tune of £100,000. The campaign involved:

• innovative tactics such as the use of body-worn video cameras by police (head cams) • dedicated Domestic Abuse response vehicles • increased front-line policing • identification and targeting of the ten highest risk perpetrators in each area and to include proactive bail checks based on intelligence and data • identification via MARACs of the ten highest risk victims in each area. (Home Office 2006)

HM Inspectorate of Constabulary reported on the Thames Valley Police enforcement campaign:

Buckinghamshire BCU ran a proactive DV operation in 2006, targeting high- risk and repeat victims. This was carried out during the Christmas period, when an increase in allegations was anticipated. Officers visited victims to provide advice and support during what was identified as the most vulnerable period. An initial review showed a drop in repeat victims or a drop from repeat incidents to a single incident. Further multi-agency operations are planned. (HMIC, 2007: 44)

The Domestic Violence Disclosure Scheme Another new role for the police dealing with domestic violence is that of the Domestic Violence Disclosure Scheme. At the time of writing this is only at the pilot stage and the scheme is still being developed. The idea is to let people know if their new partner has a history of domestic violence in order to allow them to make informed choices about how and whether they take their relationship forward. The scheme has been referred to as ‘Clare’s Law’ after Clare Wood from Salford who was killed by her partner George Appleton who had previous relevant convictions that Clare knew nothing about. The Domestic Violence Disclosure Scheme had been proposed in the ACPO Downloaded by [University of Defence] at 01:45 24 May 2016 report Tackling Perpetrators of Violence against Women and Girls (ACPO, 2009: paras 2.1–2.7) as well as having been campaigned for by Michael Brown, Clare Wood’s father. The Coroner’s report into the murder of Clare also suggested a form of information disclosure in these circumstances. Disclosure schemes were already familiar to the police in the form of similar arrangements in place for information to be disclosed on known sex offenders in the interests of child protection; this scheme had started in 2008 and early evaluations had been positive (Kemshall et al., 2010). Policing 85 A Consultation Paper on disclosure of information on people with a history of domestic violence was published in October 2011 asking whether we should just continue with the present discretionary law which does enable disclosures, or whether we needed new laws to give people the right to ask and the right to know about a persons’ conviction history; the right to know would place the onus on the police to be proactive and not wait to be asked. The Consultation Paper suggested that the Police National Database taking over from the Police National Computer would facilitate the dissemination of information of this nature allowing forces to attach Domestic Abuse Serial Perpetrator markers to flag prolific and dangerous subjects (Home Office, 2011d). Some 250 responses to the Consultation Paper were received and the Home Office has coordinated four pilot schemes to be run by the Greater Manchester Police, Nottinghamshire, Wiltshire and Gwent police which started in the summer of 2012 and ran for one year (Home Office, 2012b).

Summary The police have had a chequered history when it comes to domestic violence. They are the most visible and most obviously available service to call on over 24 hours of the day. Their service has slowly improved over the last 30 years but criticisms are still made (see e.g. IPCC, 2013). The police have instituted Domestic Violence Units and Sexual Assault Referral Centres. They have taken a more positive approach to domestic violence and in turn been given more powers including the Domestic Violence Protection Notice. Having given an overview of the historic and contemporary policing response to domestic violence in England and Wales, the following chapter turns to the next stage in the criminal justice process and the prosecution of offenders. Downloaded by [University of Defence] at 01:45 24 May 2016 5 Prosecuting

As we noted in Chapter 4, when the police and the Crown Prosecution Service (CPS) decide they have enough information to charge someone with a criminal offence they must then bring them before a criminal court. Here we consider in more detail the role of the CPS involved with cases of domestic violence.

The Crown Prosecution Service – a brief history At one time the police prosecuted their own cases in the magistrates courts and instructed solicitors and barristers to prosecute the more serious cases in the circuit courts and later the Crown courts. Concerns were expressed that the police could conceivably get their investigative role confused with their prosecution role and that perhaps the roles should be divided. The 1981 Royal Commission on Criminal Procedure chaired by Sir Cyril Philips formally recommended that an independent public prosecutor be appointed to take prosecution work off the police:

We consider that there should be no further delay in establishing a prosecuting solicitor service to cover every police force. This should, in our view, be structured in such a way as both to recognise the importance of independent legal expertise in the decision to prosecute and to make the conduct of prosecution the responsibility of someone who is both legally qualified and is not identified with the investigative process. (Philips Commission, 1981: para 7.3)

The resulting Prosecution of Offenders Act 1985 created the Crown Prosecution Downloaded by [University of Defence] at 01:45 24 May 2016 Service, which began work in 1986. The Crown Prosecution Service (CPS) is today the agency responsible for the decision to charge and prosecute in a given case and for then carrying out that prosecution in the criminal courts. They work closely with the police but are still independent of the police. As a central government department the CPS is accountable to the Director of Public Prosecutions and in turn to the Attorney General who is a government minister. In its earliest days the CPS struggled to find its feet and staff and funding short- ages were acknowledged as being underlying causes. A report later confirmed Prosecuting 87 that ‘when it started the CPS was grossly understaffed’ (Glidewell Report, 1998: para 6). To this could be added the poor working relationships with the police who had previously carried out this work and who now appeared to engage in a ‘turf war’ as to who did what. The police had particular difficulty accepting the powers of the CPS to ‘discontinue’ a prosecution despite the work put in on it by the police. According to one MP: ‘Some experienced officers – mostly in the inspector to superintendent range – were very unhappy about taking a back seat to a young and possibly inexperienced lawyer from the CPS’ (quoted in Pienaar, 1989) and by 1990: ‘criticism of the Crown Prosecution Service, and ill-concealed feuding between police and CPS lawyers, reached a new pitch of public acrimony yesterday as MPs prepared to mount a major Commons inquiry’ (Pienaar 1990). The inquiry in question was to be led by the House of Commons Home Affairs Committee who had decided to undertake an examination of what was going on in the CPS. In recent times the CPS-police relationship has improved but the CPS has still produced guidance on ‘dos and don’ts’ for CPS officers (CPS, n.d.). In the 1990s on the prosecution of rape and sexual offending in particular the CPS continued to be criticised by women’s groups for its high attrition rate in failing to get cases to court let alone to a position of conviction and sentence (Gibb, 1995). Partly as a response to these sort of criticisms the CPS drew up and published its own policy on the prosecution of cases of domestic violence in 1995 (CPS, 1995) and revised and refined this policy statement in subsequent editions published in 2005 and 2009 (CPS, 2005 and 2009; for more on the 2009 policy see below). As the majority of domestic violence victims are women, the CPS also regards the actions they take against domestic violence as part of their published ‘Violence against Women Strategy’ (CPS, 2009: para 21.1). Research with respect to domestic violence had revealed some deficits in the charging model carried out by police custody officers when decisions were made at the last minute under time pressures and often based solely on what the investigating officers were saying rather than any judgement of the custody officers. These decisions were often negotiated by police officer ‘working rules’ rather than considered legal assessment and formal rules (Hoyle, 1998: Chapter 6). The 1998 Review of the Crown Prosecution Service chaired by Sir Iain Glidewell noted the improving performance of the CPS but suggested that further close working with the police was necessary and that the current trend to centrali- Downloaded by [University of Defence] at 01:45 24 May 2016 sation and overly bureaucratic structures should be challenged; a greater use of information technology would help to decentralise functions. Once these organisational changes had been implemented, Glidewell was mindful of the years of upheaval and change for the CPS and now recommended that there ‘should be no further major changes to, nor review of, the CPS or any major part of it for a considerable period of time’ (Glidewell Report, 1998). Three years later the Auld Report Review of the Criminal Courts of England and Wales took another look at the arrangements it called ‘Preparing for Trial’ and recommended yet further changes for the CPS focussing in again on the 88 Prosecuting critical interface between the police as investigators and the prosecutor (Home Office, 2001: Chapter 10). The Auld Report wanted to see ‘a strong, independent and adequately resourced prosecutor in control of the case at least from the point of charge’ (ibid.: 399) and proposed an enhanced role for the CPS so that in future the CPS and not the police should decide whether and what to charge a suspect with. This particular recommendation would ultimately lead to the Statutory Charging Scheme embodied in the Criminal Justice Act 2003 s28 and Schedule 2; see below).

The Crown Prosecution Service today Although the CPS is a central government department, by its very nature, it has to have local and regional offices covering the whole country. The CPS is currently made up of 42 areas covering England and Wales. Each area has its own Chief Crown Prosecutor and is coterminous with the 43 police force areas for England and Wales; one CPS area covers the two London police forces. The areas are in turn grouped into 14 regional areas headed by a Group Chair Chief Crown Prosecutor, the lead prosecutor. Since 2001 each of the 42 CPS areas has had its own Domestic Violence Coordinator. Scotland and Ireland have their own arrangements: the Procurator Fiscal in Scotland and the Public Prosecution Service in Northern Ireland. The CPS has stated its central role to be that of protecting the public and reducing crime alongside supporting victims and witnesses; it seeks to deliver justice in dealing with criminal conduct. In March 2010 the CPS elaborated these ideals about its work into twelve Core Quality Standards. In summary these are:

1 advising the police on bringing offenders to justice 2 making timely, effective and fair charging decisions 3 using ‘out-of-court’ disposals where appropriate 4 opposing bail where appropriate taking account of any potential risks posed to victims and the public 5 preparing cases promptly for court in accordance with the Criminal Procedure Rules 6 presenting cases firmly and fairly 7 keeping victims and witnesses informed and offering appropriate support 8 explaining CPS decisions to victims Downloaded by [University of Defence] at 01:45 24 May 2016 9 assisting courts in the sentencing process 10 exercising the CPS right of appeal if we believe the court has made a wrong decision 11 dealing with complaints against the CPS 12 engaging with communities so that we are aware of concerns when we make decisions. (For more detail on all these Standards see CPS website at http://www.cps. gov.uk/publications/core_quality_standards, accessed 27 July 2012) Prosecuting 89 Standard 12 has led to the CPS organising their own groups or panels in local communities so that concerns can be expressed; these local Community Involvement Panels have often co-opted local groups concerned with domestic violence. The West Yorkshire CPS Community Involvement Panel, for example, has two representatives on it from the Leeds City Council Domestic Violence Team (see http:// www.cps.gov.uk/yorkshire_humberside/assets/uploads/files/W%20Yorks%20 CIP%20Annual%20Report%202009-10.pdf, accessed 27 July 2012). The three most important roles for the CPS are that of deciding on charges, conditional cautioning and prosecutions; charges and conditional cautions are then carried out by the police while prosecutions are implemented by the CPS.

Charging As we noted above the movement to take charging away from the police and to bring in the CPS at this earlier stage had gathered momentum from 2000 onwards. The Statutory Charging Scheme based on the Auld Report (Home Office, 2001) and the Criminal Justice Act 2003 started nationally in April 2006. The idea was that the police and CPS lawyers would decide in face-to-face discussions the most appropriate charge. It was hoped that this would be a more informed and better decision making process than in the past, which would lead to more guilty pleas and less decisions to ‘discontinue’ a case. If a CPS lawyer was not physically available, a 24-hour service was to be provided by the CPS using the telephone line service CPS Direct for weekends and out-of-office times. The CPS Direct scheme provides a telephone and IT based ‘remote’ advice service to the police, which appears to be well regarded by its users, and the idea is that it can contribute to the consistency and ease of access to legal advice provided for the police. The service should be complementary to local engagement and should operate within the context of a good face-to-face working relationship and mutual understanding between the police and the CPS at a local level (for more on CPS Direct see http://www.cps.gov.uk/direct/about/how_we_work, accessed 8 July 2012). What was in effect being created was the ethos of a Prosecution Team that recognised the closeness of the police and CPS working together whereby the CPS took on the decision to charge from the police and thereby hopefully weeding out the non-viable cases and ensuring a better state of readiness for trial at the earliest possible opportunity. More guilty pleas and fewer cases being discontinued was Downloaded by [University of Defence] at 01:45 24 May 2016 the overall aim (CPS, 2006). The 2003 Criminal Justice Act also gave the DPP powers to issue legal guidance to police custody officers holding police detainees and required those custody officers ‘to have regard to this guidance’. The DPP has published legal guidance on ‘Prosecuting Cases of Domestic Violence’ (available at http://www.cps.gov.uk/ publications/prosecution/domestic/domv_guidance.html#a01, accessed 5 August 2012) as well as on the related areas of ‘Stalking and Harassment’ (CPS, 2010), ‘Special Measures’ (CPS, 2011a) and ‘Female Genital Mutilation’ (CPS, 2011b). 90 Prosecuting As we noted in Chapter 4, the police custody officers continued to charge some people when the cases were less serious but ‘less serious’ did not include cases of domestic violence; the current CPS guidance is that: ‘When the police have reasonable suspicion that a suspect has committed an offence involving domestic violence, they must refer that case to a prosecutor, who will make a decision whether to charge’ (CPS, 2013: para 3.7, emphasis added). If no charge is to be made the CPS ‘will inform the victim in writing of the decision and the reasons for it’ (ibid.: para 3.8) – the CPS is conscious of the need for speed given that even if there is going to be no prosecution there might still be implications for a person’s future safety (ibid.: para 3.10). A Criminal Justice Joint Inspection (CJJI) of progress on the Statutory Charging Scheme was carried out in 2008 and was generally pleased with what it found. It did also report, however, that although the systems were good in principal there was fine tuning still needed at operational level to make it more efficient because ‘the processes observed in most of the areas visited were not efficient and need to be “smarter”’ (CJJI, 2008: para 3.4). The House of Commons through its Justice Select Committee also looked at the Statutory Charging Scheme as part of a general overview of the CPS. The Committee took evidence from the Police Federation that revealed police to be critical of the time it could sometimes take a police officer to actually see a CPS lawyer; they wanted to see the expansion of the CPS Direct scheme. They also wanted to see more consistency amongst the CPS lawyers in their decision making and cited cases that looked very similar to police officers being given opposite charging outcome decisions. The Federation contrasted what they called the cau- tious ‘risk averse’ approach of CPS lawyers to that of the old custody officers who had made the charging decisions in the past (House of Commons, 2009: Ev108–9). All of these criticisms were listened to and in April 2010 pilot schemes in six police forces were started to give more charging powers back to the police. This move was taken on board by the new coalition government and within days of coming in to office the new Home Secretary announced her support for giving some charging powers back to the police (BBC News, 2010).

Conditional cautions Conditional cautions were introduced by the Criminal Justice Act 2003 Part 3. The aim is the same as for a simple caution but with the addition of what are Downloaded by [University of Defence] at 01:45 24 May 2016 seen as rehabilitative conditions such as help and treatment with drug or alcohol dependency or reparative conditions which aim to help the offender make good the harm caused either to a person or a local community. The simple caution is a decision made by the police alone (see Chapter 4). The conditional caution is required to be made by the CPS. The conditions are decided upon by the CPS in discussions with the police and failure by the offender to complete them may lead to prosecution for the original offence. The formal CPS position is that the conditional caution should not be used in domestic violence cases (CPS, 2013: Annex A p. 12). Despite this position Prosecuting 91 statement it has been argued that they might actually be useful; they could, for example, provide conditions that require a man to receive help with a drinking problem that contributes to violence in the home. This potential usefulness was recognised in the ACPO report looking at what new measures the police thought would be useful to deal with perpetrators of domestic violence. The report by Brian Moore described conditional cautions as providing what it called ‘a near criminal justice disposal’ with a strong rehabilitative element that could preserve a relationship but still bring in an element of punishment should the offender breach the conditions; the report suggested that conditional cautions should become available (ACPO, 2009: paras 8.1–8.7). On a wider level with respect to all cautions not everyone has been happy with the police getting increasingly involved in these out-of-court disposals leading to prosecutions and court appearances being suspended. Magistrates in particular have been critical of this trend citing inappropriate cautions, regional variations in their use and questions about their effectiveness. The Secretary of State for Justice responded by announcing a review of all out-of-court disposals to be undertaken by the Office for Criminal Justice Reform (Hansard HC Debates, 14 December 2009 col.60WS); an initial report has made no firm proposal but has confirmed that simple cautions have been used in cases of ‘grievous bodily harm’ and even rape (OCJR, 2010: para 5.2). There have also been suggestions that the police might look at taking on the decision making for conditional cautioning, a suggestion made in the context of police efficiency (see Berry Report, 2010: 20).

Prosecuting Prosecuting is inevitably the mainstay of CPS work. The Code for Crown Prosecutors guides the CPS in making their prosecution decisions. They have to consider two central tests:

• the Evidential Test • the Public Interest Test.

The Evidential Test means there has to be enough evidence collected by the police for a realistic prospect of conviction; the Public Interest Test is a decision based on factors listed in the Code that should be taken into account in deciding to pros- Downloaded by [University of Defence] at 01:45 24 May 2016 ecute. The CPS has to consider the Evidential Test first before going on to the Public Interest Test; if there is insufficient evidence the case falls at that point and the ‘public interest’ does not get considered. The CPS has listed examples of what helps them to decide if something related to domestic violence is in the public interest:

• the seriousness of the offence • the victim’s injuries – whether physical or psychological • if the defendant used a weapon 92 Prosecuting • if the defendant made any threats before or after the attack • if the defendant planned the attack • if there are any children living in the household • if the offence was committed in the presence of, or near, a child or young person • the chances of the defendant offending again • breaches of any court orders • the continuing threat to the health and safety of the victim or anyone else who is, or may become, involved • the history of the relationship, particularly if there has been any violence in the past • the defendant’s criminal history, particularly any previous violence • any other factors that are relevant to the public interest. (CPS, 2009: para 6.3)

Together the Evidential and Public Interest tests are referred to as the Full Code Test. The latest edition of the Code for Crown Prosecutors (CPS 2009) is accessible from the CPS website at http://www.cps.gov.uk/publications/code_ for_crown_prosecutors/index.html, accessed 5 August 2012. Formal statements from the CPS affirm that they take domestic violence prosecution very seriously:

We regard domestic violence as particularly serious. Its domestic nature is an aggravating, rather than a mitigating factor because of the abuse of trust that is involved… stopping domestic violence and bringing perpetrators to justice is therefore priority for the CPS. (CPS, 2009: para 1.2)

The retraction of domestic violence allegations The retraction of allegations and statements by victims of domestic violence has a long-standing history. The CPS is not the only agency to experience it and the police and the courts have to manage retractions as well. The victim might have become reconciled or have been intimidated into a retraction. The police in the past have felt they were being left high and dry and this in turn contributed to the vicious circle of police not wanting to get involved with cases of domestic vio- Downloaded by [University of Defence] at 01:45 24 May 2016 lence and women being reluctant to report. For others this was simply the sign of a damaged woman under pressure being not sure of what direction she wishes to go in. The CPS have been criticised in the past for its response to victims unwilling to support the prosecution (Cretney and Davis, 1997). It is possible for the evidence of domestic violence to be brought in independently of the victims’ statement. If everything is overly dependent on the statement, homicides would never be prosecuted. In America they refer to the ‘victimless prosecution’ when they proceed without a statement. It involves more work for the Prosecuting 93 police who have to engage in ‘enhanced evidence gathering’ and ‘construct’ a case (see Ellison, 2002 on ‘victimless prosecutions’ in San Diego, California). There are other ways of getting victim/witnesses statements into court when faced with a retraction. The Police and Criminal Evidence Act 1984 s80 empowers the courts to compel witnesses to attend and give evidence. The Act specifically states that compulsion may be used:

if, and only if (a) the offence charged involves an assault on, or injury or a threat of injury to, the wife or husband of the accused or a person who was at the material time under the age of sixteen. (Police and Criminal Evidence Act, 1984 s80)

Using section 80 to compel witnesses to attend is hardly ever done. Witnesses can become hostile and still refuse to speak or at worst they can deliberately undermine the prosecution case (Cretney and Davis, 1997). The Criminal Justice Act 1988 went further and allowed a statement given to a police officer to ‘be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible… if the requirements of subsection (3) below are satisfied’ (Criminal Justice Act, 1988 s23(1)). Subsection (3) then said:

(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.

The Criminal Justice Act 1988 s23 has now been replaced by similar wording in the Criminal Justice Act 2003 which outlines the conditions in which a written statement might replace an oral one:

The conditions are: (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; Downloaded by [University of Defence] at 01:45 24 May 2016 (c) that the relevant person is outside the United Kingdom and it is not rea- sonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is rea- sonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (Criminal Justice Act, 2003 s116 (2)) 94 Prosecuting The Criminal Justice Act 2003 s116 (2) (e) with its reference to ‘fear’ is directly applicable to domestic violence and a partial definition is now given in the Act where ‘fear’ is to be ‘widely construed and (for example) includes fear of the death or injury of another person or of financial loss’ (s116 (3)). The 2003 Act gives further guidance to the courts on when such statements should be allowed:

(4) Leave may be given under subsection (2) (e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard: (a) to the statement’s contents; (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence); (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc.) could be made in relation to the relevant person; and (d) to any other relevant circumstances. (Criminal Justice Act, 2003 s116 (4))

The final decision on the use of statements remains with the court and they will balance their use against that of the defendants’ being unable to cross-examine a written statement; the decision rests on what is best for justice and whether the overall trial remains fair (see Ellison, 2003). The CPS policy statement is clear that in the case of serious domestic violence offences they will still prosecute in the public interest even if the victim does not want them to. In these cases the CPS will either:

1 apply to the court to use the victims’ statement as evidence without the victim having to give evidence in court; applying to use victim’s statements has to be a court decision made in the interests of justice; 2 offer ‘special measures’ to see if this would help the victim give evidence (see below);

Downloaded by [University of Defence] at 01:45 24 May 2016 3 require the victim to give evidence in court against their wishes. (CPS, 2009: para 5.19)

A particularly high profile case made headlines in October 2010. A woman known to the press only as ‘Sarah’ made marital rape allegations to the police about her husband. The police took the matter seriously and arrested the husband. Later the woman retracted her statement and the case against the husband was undermined and ultimately all charges were dropped by the CPS. Prosecuting 95 The woman then went on to say the original allegations were true and she had been pressurised into retracting them; it was the retraction that was false. At this point it was ‘Sarah’ who was arrested and then prosecuted for perverting the course of justice; she received a custodial sentence at Mold Crown Court (Pidd, 2010). On appeal the custodial sentence was changed to a Community Order but the wider questions about retractions had been brought into sharp relief; an attempt to get the conviction quashed altogether failed (A v. R [2012] EWCA Crim 434). The CPS responded to the ‘Sarah’ case by stating that as an interim measure the DPP Keir Starmer would personally approve any future prosecutions for retractions in rape cases (Hirsch, 2010). New interim guidance on retractions and how they might be dealt with were drawn up in February 2011 and put out for consultation (CPS, 2011c); a final version was published in August 2011 (CPS, 2011d). It has also been noted that prosecution teams have at times contacted victims of domestic violence even before any charges have been decided upon to confirm that they are still prepared to support a prosecution. This practice has been criticised as potentially undermining victim confidence because it could suggest to already vulnerable victims that there are difficulties with their case and not least when there may have been no indication at all that they were not going to support a prosecution. The Inspectorate report highlighting this suggested it was a practice that should cease (CJJI, 2008: para 9.16).

Position of victims The CPS published a general statement on its treatment of victims and witnesses in the early 1990s. In the statement the CPS explained that ‘it is vital that victims of, and witnesses to, crime have faith in the criminal justice system’ and as such the manner in which they are treated by the CPS was ‘extremely important’ (CPS, 1993). Their aim was to facilitate the court experience by asking the court to set a date as convenient as possible to the witnesses and for either themselves or Victim Support to let witnesses know what would happen in court. During the trial itself they would look after the interests of the witnesses and explain the results of cases, whenever possible, to victims at court (CPS, 1993). How effective any of this was is mostly known only anecdotally. Downloaded by [University of Defence] at 01:45 24 May 2016 This concern for the victim has been re-stated more recently with the victims of domestic violence in mind:

we recognise that victim’s experiences of domestic violence and of the criminal justice system will be different and that they will have individual needs and safety requirements… we will do our best to ensure that support for victims is tailored to suit their needs. (CPS, 2009: para 11.3) 96 Prosecuting The Witness Service and the Witness Care Service The Witness Service is a service provided by Victim Support since the 1990s. The Service can arrange pre-court familiarisation visits and explain to victims and witnesses what may happen in court and what the procedures are; they do not discuss the case as such. Witness Care Units are run jointly by the CPS and the police and exist in all CPS areas. (See Chapter 6 for more on both the Witness Service and the Witness Care Service.)

Victim Personal Statements Victim Personal Statements have been mentioned earlier in Chapter 4 because it is part of the policing role to invite them from crime victims; they will be referred to again in Chapter 6 as part of the sentencing process. At this point we might just repeat that the VPS is an optional statement by the victim explaining the effect the crime has had on them and should contain details about a person’s current safety, possible intimidation or the defendant’s bail status. A VPS may also be supportive of a need for a prosecution. Kenneth Clarke, the Coalition government’s first Secretary of State for Justice, said that he wished to review the VPS: ‘We will also take a careful look at the operation of the Victim Personal Statement, which is a vital tool in giving voice to victims, to ensure it is better understood and much more widely used’ (MoJ, 2012a: Foreword).

‘Discontinuance’ One of the more concerning aspects of the prosecution process for the victims of crime has always been the CPS decision to not proceed to court for a prosecution. These decisions in cases of domestic violence may well be based on appropriate reasoning because of insufficient evidence or other aspects of the Code for Prosecutors but to the victims they could appear random and inexplicable and not least because the CPS rarely explained them to the victims. These cases were described as being ‘discontinued’ and a decision to stop proceedings referred to as ‘discontinuance’. The Glidewell Report recommended that the ‘transfer to the CPS of the responsibility for giving information and, where desired, an explanation to com-

Downloaded by [University of Defence] at 01:45 24 May 2016 plainants/victims should take place in each CPS Area as soon as the resources of that Area permit’ (Glidewell Report, 1998: para 55). The Macpherson Report recommended ‘The CPS should ensure that all decisions to discontinue any prosecution should be carefully and fully recorded in writing and that, save in exceptional circumstances, such written decisions should be disclosable to a victim’ (Macpherson Report, 1999: recommendation 37). The formal position regarding advice to victims on discontinuance is now clar- ified in the CPS policy statement on prosecuting domestic violence: Prosecuting 97 Where the CPS makes a decision not to charge on the basis of a written file of evidence from the police, or decides to drop or substantially to amend a charge, we will inform the victim in writing of the decision and the reasons for it. (CPS, 2009: para 3.8)

In certain cases our letter will also offer a meeting with the prosecutor where a fuller explanation may be provided. (ibid.: para 3.11)

The vulnerable and intimidated witness Witnesses of any crime can find it difficult to give good substantive evidence in the stilted atmosphere of the court. When witnesses are also the victims of the alleged crime, the experience can become even more difficult and intimidating when they are directly confronting that person accused of the crime. To help these witnesses ‘special measures’ have been put into place to try and assist them and it is part of the CPS role to identify people who may need special measures and to ensure that they are applied for in the court hearing. From the mid-1990s and earlier, research and individual cases had been emerging to show how people with learning difficulties or other disabilities could feel generally vulnerable as a witness in court (Home Office, 1996b). In 1997 the Labour Party manifesto had committed the Party to introduce greater protection for all intimidated and vulnerable witness (available at http://www. labour-party.org.uk/manifestos/1997/1997-labour-manifesto.shtml, accessed 21 May 2013). The word ‘vulnerable’ applied to witnesses with disabilities who were unable to give evidence with sufficient clarity for a court, and ‘intimidated’ meant those who felt directly threatened by the defendant; victims of domestic violence could fall into both categories but mostly into the ‘intimidated’ classification. Witnesses could be intimidated in cases of organised crime or gang related activities; women as witnesses could also be intimidated by threats of violence from a male spouse or partner in situations of domestic violence. Victims of domestic violence can be the main and only witness to the crimes. They may equally be easily intimidated by the perpetrator of the crime. The trial of Ralston Edwards in 1996 was the court hearing that had raised Downloaded by [University of Defence] at 01:45 24 May 2016 the question of the intimidated witness in the most direct manner. The charges concerned alleged rape rather than domestic violence but the lessons were clear in terms of intimidating a witness. Edwards chose to dispense with his defence lawyer and to represent himself in court thus enabling him to cross examine his victim face to face over a period of six days. He reportedly caused her great distress as he took her through the ordeal a second time; he even wore the same clothes in court as he had done during his attack. It appeared that he was deriving pleasure from reliving the rape (‘Inquiry into rape victim’s court ordeal’ Daily Telegraph 23 August 1996; Temkin, 2002: 320–1). 98 Prosecuting The Labour party included looking for ways of helping the vulnerable and intimidated witness in their Manifesto published before the 1997 general election. In power, Home Secretary Jack Straw announced the setting up of an interdepartmental working group to examine the questions arising. The working group’s terms of reference included:

• to identify measures at all stages or the criminal justice process to improve the treatment of vulnerable witnesses, including those subject to intimidation • to encourage such witnesses to give evidence of crime and enable them to give best evidence in court • to consider which witnesses should be classified as vulnerable • to identify effective procedures for applying appropriate measures in individual cases • to make costed recommendations. (Hansard HC Debates 3 July 1997 col.235W)

The Consultation Paper Speaking up for Justice was duly published in June 1998 suggesting ways of helping vulnerable or intimidated witnesses of crime to give best evidence in court (Home Office, 1998). Speaking up for Justice recommended a series of ‘special measures’ to help the vulnerable or intimidated witness that included live Closed Circuit Television (CCTV) links, to allow the witness to be in a separate room, which were already allowed for children. More controversial was the proposal that evidence in chief be pre-recorded on video tape. Screens to shield the witness from the defendant were suggested so that witnesses were only seen by counsel, the judge and jury; this was currently allowed in national security cases or children’s cases. The report also recommended that anonymous witnesses – permitted in law – should be encouraged where necessary including the removal of addresses from witness statements prior to prosecution disclosure to the defence and that witnesses be allowed to carry pagers so they could be called in from venues where they would be unlikely to meet up with the defence witnesses (ibid.: Chapters 8 and 9). Most of these recommendations for ‘special measures’ were made manifest in the Youth Justice and Criminal Evidence Act 1999 which got Royal Assent on 27 July 1999:

• screens (s23) Downloaded by [University of Defence] at 01:45 24 May 2016 • live link (s24) • evidence given in private (s25) • video recorded interview (s27) • video recorded cross examination (s28) • discretionary protection of witness from cross examination by the accused in person (s36). Prosecuting 99 Two special measures are available solely to eligible vulnerable witnesses:

• intermediaries to enhance witness communications (s29) • aids to communication such as alphabet boards (s30).

The Act also identified the vulnerable and intimidated witness. The vulnerable were to be all children under 17 years; this age was later raised to 18 years by the Coroners and Justice Act 2009. Vulnerable adults included adults where the quality of their evidence is likely to be diminished by reason of a mental disorder, a significant impairment of intelligence and social functioning or a physical disability (s16). The intimidated witness was to include those people where the court considers that the quality of their evidence is likely to be diminished by reason of fear or distress in connection with giving evidence if special measures were not available (s17):

3.137 Some offences are more likely than others to give rise to the intimidation of witnesses. Research has shown that sexual offences, assaults, domestic violence, stalking (which by its nature involves repeated victimisation) and racially motivated crimes are particularly likely to lead to intimidation. When the witness is also the victim, the risks may increase further. (MoJ, 2011b)

The Crown Prosecutors or counsel for the defence were to make application for the special measures with the consent of the witness concerned. The court made the decision as to whether they would be permitted and decided exactly which measures would be suitable; the court may also initiate an application if it thought it would raise the quality of the evidence or they were being brought in because of any behaviour observed towards the witness on the part of the accused, their family or associates, or any other witness or co-accused (this may be particularly relevant in cases of domestic violence). The role of the court witness supporter is, by their presence, to provide emotional support to the witness and to reduce their anxiety and stress when giving evidence, thereby ensuring that the witness has the opportunity to give their best evidence. It is the responsibility of court staff to ensure that the equipment in the live link room is working correctly. The Coalition government has again stressed the importance of supporting vic- Downloaded by [University of Defence] at 01:45 24 May 2016 tims and witnesses in court; following a consultation exercise in January 2012 the Ministry of Justice has said:

in recognising the critical role that victims and witnesses play in court, without which justice cannot be done and there would be many more criminals on our streets, the Government must ensure that those who play their part in this way get the support they need to deal with the stresses of going to court and giving evidence. (MoJ, 2012a: para 3) 100 Prosecuting It is possible for a judge to grant a ‘witness anonymity order’ to a witness if there is a fear of intimidation. Such an order is not strictly a ‘special measure’ as espoused by the Youth Justice and Criminal Evidence Act 1999 although there are some overlapping features. A 1994 test case ruled their use was applicable if:

1 there were real grounds for fear of the consequences should the witness’s identity become known; 2 the evidence was important; 3 the creditworthiness of the witness had been examined; 4 there would be no undue prejudice to the accused. (R v Taylor (Gary) [1994] The Times 17 August 1994 CA)

The 1998 report Speaking up for Justice had considered the need for witness anonymity but on balance decided against it for any new laws in the context of intimidation and domestic violence believing the existing law was sufficient (Home Office, 2003a: paras 8.26–8.32). The question arose again in 2008 when a convicted murderer successfully appealed his conviction because the witnesses against him had been anonymous. The witnesses had appeared in court behind screens and had had their voices modulated to avoid recognition because they feared intimidation. The defendant Iain Davis claimed he had not had a fair trial because he could not confront these witnesses, could not note their demeanour and the whole process had created a doubt in the minds of the jury. The UK House of Lords agreed with Davis and regretted that there was no statutory law covering anonymity orders; the Criminal Appeal Court quashed his conviction (R v Davis [2008] UKHL 36). To prevent a run of similar appeals by people convicted on the strength of witness anonymity orders emergency temporary legislation was passed (Criminal Evidence (Witness Anonymity) Act 2008) and later consolidated in the Coroners and Justice Act 2009 ss86–90. The new law now states that:

The kinds of measures that may be required to be taken under a witness anonymity order include measures for securing one or more of the following: (a) that the witness’s name and other identifying details may be – (i) withheld;

Downloaded by [University of Defence] at 01:45 24 May 2016 (ii) removed from materials disclosed to any party to the proceedings; (b) that the witness may use a pseudonym; (c) that the witness is not asked questions of any specified description that might lead to the identification of the witness; (d) that the witness is screened to any specified extent; (e) that the witness’s voice is subjected to modulation to any specified extent. (Coroners and Justice Act, 2009 s86 (2)) Prosecuting 101 Given the nature of domestic violence the question of anonymity is probably not an issue when the victim is so often the witness; although anonymity for a witness has arisen in a case of honour based violence within a family when a neighbour was granted anonymity before giving evidence (The Queen v Azhar Nazir [2009] EWCA Crim 213). Studies have found that special measures have improved the lot of the intimidated or vulnerable witness (see e.g. Hoyano, 2001; Hamlyn et al., 2004a and 2004b; Burton Evans and Sanders, 2006). The police continue to experience difficulties identifying the intimidated witness and the CPS do not bother to look if the police have not found them. Sometimes it is only the Witness Service that pick them up and that is usually too late to organise anything:

Overall performance The general consensus appears to be that the CPS is getting more successful in its prosecutions in cases of domestic violence. The CPS’s own statistics show that the number of successful prosecutions is rising (CPS, 2011c) and in its evidence to the 2009 Justice Select Committee it was able to report:

• The CPS is committed to raising the awareness and effective prosecution of domestic violence. Comprehensive policy and guidance (Annex 8) (not printed) on domestic violence were first developed in 2001. A Domestic Violence Coordinator (DVC) was appointed in every CPS Area to oversee the policy’s implementation. These documents were revised in 2005, and are being revised again this year. • The CPS has built capability in its staff through training for all prosecutors and caseworkers and for prosecutors working in specialist domestic violence courts. The CPS has been a driving force in the developments of these specialist courts. • Unsuccessful outcomes in domestic violence cases have fallen significantly since 2004–05, alongside a reduction in cases that have been discontinued and those which resulted in a bind-over against a background of increasing volumes. • There is a target to reduce unsuccessful domestic violence prosecutions to 28% for 2008–09 and the figures for the first two quarters of 2008–09 show that target has already been exceeded.

Downloaded by [University of Defence] at 01:45 24 May 2016 (House of Commons, 2009: Ev.76 paras 3.11–3.14)

Other agencies gave evidence to the same committee that they had seen improvements: ‘The CBA [Criminal Bar Association] is of the opinion that the CPS has, in general, improved the way in which it is managing rape and domestic violence cases. However, there is still much more that can be done’ (House of Commons, 2009: Ev.68 para 31). 102 Prosecuting Elsewhere Diana Barran, Chief Executive of CAADA (Co-ordinated Action Against Domestic Abuse) has reported that:

Over the last few years, the CPS has implemented one of the most robust and effective strategies for tackling violence against women of any government department. The measures it has taken have made a real difference to victims of domestic abuse. Despite facing large budget cuts over the next four years, the CPS is pledging to continue its hard work to support domestic abuse victims in the future, and this is to be commended. (CPS, 2011f: x)

The Crime Survey for England and Wales (ONS, 2012) published in July 2012 reported a sizeable fall in murders and violent crime generally and commentators have attributed this in large part to the drop in the level of domestic violence:

The long, sustained fall in the level of domestic violence as measured by the crime survey since 1995, from more than 1 million incidents a year to fewer than 400,000, is the most likely explanation of what is driving the fall in the murder rate. (Travis, 2012b)

This in turn is said to be attributable to the police, prosecutors and courts treating domestic violence more seriously: ‘in 2001 crown prosecutors did not even monitor domestic violence cases, but the figures have risen from 35,000 defendants in 2003–4 to more than 74,000 in 2009–10, with an ever increasing conviction rate’ (Travis, 2012c). The CPS strategy document on all violence toward women (CPS, 2009) has been seen as providing the firm basis for the improved CPS response to domestic violence. The Director of Public Prosecutions Keir Starmer has described it as nothing less than ‘an unprecedented shift in improved performance over the last four years’ with the number of prosecutions rising from 75,000 in 2007–8 to 91,000 in 2011–12, a rise of 21 per cent; actual convictions have also risen in the same time periods from 52,000 to 67,000, a rise of 29 per cent (CPS, 2012).

Summary Downloaded by [University of Defence] at 01:45 24 May 2016 The Crown Prosecution Service was created to take prosecutions away from the police. Despite early teething troubles the CPS has now become an established part of the criminal justice system with offices covering England and Wales. In essence the CPS make all the decisions regarding the evidence necessary and the matter of prosecution being in the public interest. It is the CPS that takes the case into the court room. 6 The courts, sentencing and punishment

When the Crown Prosecution Service has reached a decision to prosecute in a case of domestic violence, the process moves to the arena of the court where remands, convictions and sentences are decided upon. In this chapter we look at the different criminal and civil courts involved including the Specialist Domestic Violence Courts and the proceedings as they affect defendants and witnesses in court. We also examine the nature of sentencing and the parameters in which sentences for perpetrators of domestic violence are decided upon and whether custodial, community or other punishments are best suited to the circumstances.

The courts Magistrates courts and Crown courts All criminal cases start in the ‘lower’ magistrates court and many domestic violence cases are dealt with and completed in the magistrates courts as an offence of common assault or assault occasioning actual bodily harm where the injuries sustained are relatively minor. These offences are referred to as ‘summary cases’ and are heard by lay magistrates acting as representatives of the local community. A District Judge may sometimes also sit in sole judgement in a magistrates court; these are professional judges with a legal background and used to be called Stipendiary Judges. Magistrates courts hear cases of alleged offences committed in their local area or in the area where the defendant usually resides. Their legal underpinning is to be found largely in the Magistrates Courts Act 1980.

Downloaded by [University of Defence] at 01:45 24 May 2016 More serious criminal cases move to the ‘higher’ Crown court where they are heard by juries and judges in accordance with the Courts Act 1971; Crown courts used to be referred to as assizes and quarter sessions courts. This movement to the Crown courts is made if:

• the case is indictable only (an ‘indictment’ is a formal document usually referring to serious allegations) • it is an either-way offence (not suitable for summary trial) • it is either-way and the defendant elects to go to trial or 104 The courts, sentencing and punishment • it is either-way and the magistrates do not consider their powers of sentencing to be sufficient. (Criminal Justice Act, 1988 Part Four)

Specialist Domestic Violence Courts In an attempt to improve the response of the magistrates courts hearing cases of domestic violence the proposal was made that some courts should hear only domestic violence cases. The magistrates involved could be given additional training on the subject and would, themselves, gain additional experience by sitting in a specialist court dealing solely with domestic violence; the court would be modelled on that of the drugs courts which only heard cases of offending with a drug use element. The first Specialist Domestic Violence Courts (SDVC) was opened in Leeds in 1999 (Home Office, 2003a: 25). The new court had been established at the suggestion of a multi-agency working group chaired by West Yorkshire Probation Service and sat one day a week. The idea was to offer clustering and fast tracking as well as tailored support and advice from specially trained magistrates and prosecutors. The aim was to combine both criminal and civil sittings in order to provide a more effective response. The court building had separate entrances, exits and waiting areas to keep victims and defendants separate and

the sentences handed down by the specialist magistrates at this court are intended to be rehabilitative: in exchange for a non-custodial sentence, perpetrators of domestic violence are expected to attend training sessions… aimed at addressing their violent behaviour in an attempt to control it. (Walsh, 2001)

The 2001 Auld Report reviewing all aspects of the criminal courts of England and Wales acknowledged the existence of these new courts but was non-committal about them and made no specific recommendation regarding them (Home Office, 2001: Chapter 9, paras 37–40). The Safety and Justice consultation paper (Home Office, 2003a) provided a major impetus to broaden the activity of Specialist Domestic Violence Courts and the spread of the courts was swift. By 2008 64 SDVCs were in place in England and Wales (HMG, 2008: 21) and this had risen to 141 by 2010 (HMG, 2010: 25). Only the 2011 politics of austerity seemed to Downloaded by [University of Defence] at 01:45 24 May 2016 threaten them (Hyde, 2011). A review of ten SDVCs conducted between October 2006 and March 2007 found that they had achieved successful prosecutions in more than 70 per cent of cases (CPS, 2008; see also Cook et al., 2004).

Integrated Domestic Violence Courts A further innovation for the courts has been that of the Integrated Domestic Violence Court that could consider both criminal and civil matters. The idea was The courts, sentencing and punishment 105 that one judge could be available for one family dealing with the criminal side first and then the civil side. Better integration had been recommended in the 2003 White Paper Safety and Justice (Home Office, 2003a: 27–8) and an ‘integrated court’ was seen as the logical next step after the SDVC. Croydon in south London was to be the pilot scheme. Initial evaluation was somewhat disappointing. An estimated 75 cases were expected over the 18-month trial period but in practice only 5 cases had been heard in the first 12 months. The assumption was that either the integrated court was not needed or there were problems in identifying suitable cases for the court (Hester et al., 2008a).

Access to justice A democratic society believes that all citizens have a right to access the courts and to be given a fair hearing with legal representation if necessary. The European Convention on Human Rights Article Six affirms the right of people to be given ‘a fair and public hearing’. Legal Aid, overseen by the Legal Services Commission, is a form of funding for those who might otherwise not be able to afford to access justice both outside a court hearing and within a court hearing. The Legal Services Commission covers England and Wales, and helps some 20,000 people annually who are experiencing domestic violence problems and 250,000 people involved in family disputes (see Access to Justice Act 1999 and Legal Services Commission website http://www.legalservices.gov.uk/public/why_legal_aid_important.asp, accessed 28 July 2012). Scotland is covered by its own Scottish Legal Aid Board and Northern Ireland by its own Northern Ireland Legal Services Commission. In 2010 controversy was caused by Ministry of Justice proposals to reduce the Legal Aid budget. The proposals were said to recognise the difficult economic times the country was running into and was couched in terms of ‘targeting’ those who needed Legal Aid funding the most (MoJ, 2010: Ministerial Foreword). The Ministry of Justice wanted to retain Legal Aid for all domestic violence and forced marriage cases (ibid.: paras 4.64–4.66), but felt that it was not routinely justified for ancillary relief proceedings relating to property or monetary matters in divorce or private law family and children proceedings (ibid.: para 4.67). The only people who would get help in future would be those who could show ‘clear objective evidence’ of the need for protection from ‘on-going physical

Downloaded by [University of Defence] at 01:45 24 May 2016 harm’ in the form of, for example, an injunction or a conviction against a perpetrator of violence (ibid.). Critics pointed out that domestic violence was being defined too narrowly and could mean far more than just ‘on-going physical harm’ (see e.g. Rights of Women, 2011: 6; House of Commons, 2011: para 88); overall the belief was that the proposed removal of Legal Aid for some victims was at odds with the Home Office policy to prioritise domestic violence (Robins, 2011). Whoever had drawn up this ‘physical harm’ only definition – the Ministry of Justice or the Treasury who oversee the Legal Aid budget – there seemed to be a lack of joined-up thinking between the departments. 106 The courts, sentencing and punishment The government eventually agreed to widen the definition of domestic violence but made the point that it was less concerned about the definition than ‘objective evidence’ that it had actually taken place. At the same time it removed Legal Aid for those in the process of applying for injunctions such as non-molestation orders and forced marriage orders because of the dangers of possible abuse. The Legal Aid, Sentencing and Punishment of Offenders Act received its Royal Assent on 1 May 2012. The amended and widened definition for domestic violence now reads: ‘“domestic violence” means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’ (Legal Aid, Sentencing and Punishment of Offenders Act 2012 s9 Schedule One para 12.9). The Act also amended the Domestic Violence, Crime and Victims Act 2004 by removing the Legal Services Commission from the list of agencies that the Victims and Witnesses Commissioner had remit over (Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule Five para 66).

Remand decisions Having gained approval for any Legal Aid funding that may be needed, court hearings are rarely able to proceed straightaway and a period of time is needed by both sides to prepare the case. At this point the proceedings are said to have been ‘adjourned’ and the time period of the adjournment is also the time period for remand. Remands may in turn be ‘on bail’ (i.e. the defendants wait at home or in specified accommodation) or ‘in custody’ (i.e. in prison). During the 1960s and early 1970s concern rose about the number of people remanded in custody. This was considered not fair on people legally still considered innocent, many of whom would later be given a non-custodial sentence. The result of this concern was the Bail Act 1976.

Remands on bail The 1976 Bail Act s4 gave every defendant a right and a presumption to unconditional bail. This follows the European Convention on Human Rights dictum that:

Everyone arrested or detained in accordance with the provisions of paragraph Downloaded by [University of Defence] at 01:45 24 May 2016 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. (Article 5 (3), emphasis added)

The court can only refuse bail if it is satisfied that the defendant would:

• fail to surrender to custody • commit an offence while on bail The courts, sentencing and punishment 107 • interfere with witnesses or • otherwise obstruct the course of justice. (Bail Act 1976 s3 (3) Schedule 1)

The last three in this list clearly apply to cases of domestic violence when a woman may be at risk of further assaults, for example, or intimidation in various ways. The court may attach conditions to remands on bail and these were introduced to try to improve the number of remands on bail while still protecting the community. The law is quite widely drawn on what sort of conditions might be made, saying only that they are ‘such requirements as appear to the court to be necessary’ (Bail Act 1976 s3 (6)). The sort of conditions that might be attached include telling the offender that they must:

• not contact either directly or indirectly a named person and/or • not enter a specific area – go to a named place • live and sleep at a named place • report to a named police station on a given day or days at a given time • surrender their passport to a named police station • abide by a curfew and/or be electronically tagged • provide a surety to the court (a sum of money).

The law was wide enough to allow the use of electronic tagging of an accused person when that technology became available in the late 1990s. Hucklesby’s research on magistrates’ courts in South Wales found that conditions were not being used as intended with magistrates using bail conditions to appear forceful or just for the sake of it. Often there was no attempt to try and match the attached conditions to the reason for opposing a remand in custody and conditions did not attain their objectives e.g. they could stop people absconding from an area. She also highlighted the problem of enforcement especially when the conditions were considered unworkable or lacking in sanctions if there was a breach (Hucklesby, 1994). Raine and Willson’s research on magistrates courts in Nottingham, Manchester, Bradford, Stoke and Brent confirmed the picture. They found courts ‘using bail conditions as a frightener’ and as a form of summary punishment. Courts ration- alised it to themselves and believed that if done carefully it did work (Raine and Willson, 1994). Downloaded by [University of Defence] at 01:45 24 May 2016 The law was later tightened up on the use of electronic tags as a condition of bail when the Bail Act was amended to try to ensure that tags were only used when they were demonstrably an alternative to a remand in custody (Bail Act 1976 s3AB as amended by the Criminal Justice and Immigration Act 2008 s51 and Schedule 11). The numbers of remands in custody now fell but criticisms remained. One such criticism was the lack of information available to courts when making bail decisions. Bail Information Schemes were schemes usually run by the probation service to ensure that sufficient information (about the defendant’s home 108 The courts, sentencing and punishment circumstances, etc.) is given to the court to make a fully informed bail (or custody) decisions. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule 11 has further amended the 1976 Bail Act to try to reduce the number of people remanded in custody. The Act introduces a new test where bail must be given where there is ‘no real prospect’ that the person concerned would receive a custodial sentence upon conviction. Schedule 11 makes an exception to the ‘no real prospect’ test and allows for custody to still be used if a man (or woman) is likely to commit further violent offences to an ‘associated person’; this is clearly a reference to domestic violence and a new paragraph 2ZA is inserted into Schedule One of the Bail Act 1976 to that purpose:

2ZA (1) The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause: (a) physical or mental injury to an associated person; or (b) an associated person to fear physical or mental injury. (2) In sub-paragraph (1) ‘associated person’ means a person who is associated with the defendant within the meaning of section 62 of the Family Law Act 1996.

Section 62 of the 1996 Act defines an ‘associated person’ as, amongst others, someone that a person has associated with if they are married to or have been married to, are cohabitants or have been cohabitants, they are relatives or have agreed to marry.

Remands in custody When bail is refused, a person may be remanded in custody pending trial. The length of time a person may be remanded in custody is regulated by what are known as the Custody Time Limits. The CPS is responsible for applying for remands in custody and monitoring that time limits are complied with. The court makes the actual remand decision. A balancing exercise has to be undertaken

Downloaded by [University of Defence] at 01:45 24 May 2016 between keeping the time spent in custody to a minimum and expediting the trial and at the same time ensuring that individuals or the public generally are protected (see ‘CPS Legal Guidance on Custody Time Limits’ available at http:// www.cps.gov.uk/legal/a_to_c/custody_time_limits, accessed 3 August 2012).

The criminal court hearing This is inevitably the centre point of the criminal justice system played out in public as almost a form of theatre. The Crown Court in particular is the epitome The courts, sentencing and punishment 109 of ceremony, dressing up and a dramatic performance. Formal roles of solicitors, barristers, judges, magistrates, juries and other court personnel are taken on. The adversarial structure of the two ‘sides’ seeking to win the argument with evidence to demonstrate what happened is the basis of inevitable conflict that has to be governed by clear rules of engagement. In the UK courts these rules are the formal Criminal Procedure Rules (see The Criminal Procedure Rules 2011SI No. 1709). The Rules are arranged in ten principal subject divisions that correspond with the main stages of a criminal case making up a total of 76 separate parts:

• Parts 1–5 cover general matters. The rules in this division include those covering the overriding objective and case management. • Parts 6–17 cover preliminary proceedings. • Parts 18–20 cover custody and bail. • Parts 21–26 cover disclosure of evidence and unused material. • Parts 27–36 cover evidence including hearsay, bad character and special measures. • Parts 37–41 cover the trial. • Parts 42–55 cover sentencing. • Parts 56–61 cover confiscation and related proceedings. • Part 62 covers contempt of court. • Parts 63–75 cover appeals in the magistrates court, the Crown court and the Court of Appeal. • Part 76 covers costs.

The Criminal Procedures Rules Committee amends these rules and adds new rules twice a year, which usually come into force each April and October. Guidance in the form of Gateway Notices is given on the main changes. From October 2011 the rules have been consolidated at annual intervals, incorporating any amendments made during the preceding year. The overriding objective of the rules is to facilitate a ‘fair and public hearing’ where justice can be seen to be done. The detailed legal provisions are beyond the scope of this book but we should take note of the initial ‘over-riding objective’ of the Criminal Procedure Rules:

1 The overriding objective of this new code is that criminal cases be dealt with justly. Downloaded by [University of Defence] at 01:45 24 May 2016 2 Dealing with a criminal case justly includes: (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (e) dealing with the case efficiently and expeditiously; 110 The courts, sentencing and punishment (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (g) dealing with the case in ways that take into account: (i) the gravity of the offence alleged; (ii) the complexity of what is in issue; (iii) the severity of the consequences for the defendant and others affected; and (iv) the needs of other cases.

The courts have been criticised for being slow and cumbersome and somewhat ‘dated’ in their approach to their work. This criticism has spread beyond the courts to the wider aspects of the criminal justice system as a whole. The Coalition government has expressed its wish to reform the whole process: ‘A member of the public would be astounded if they visited a court. They would see rigid working practices and they would see a culture that seems to tolerate waste, delay and failure’ (MoJ, 2012a: 28). The aim was to now move toward a system ‘where police, prosecution and courts work more effectively together… justice must be swift, sure and seen to be done, or it is not done at all’ (ibid.: 4). To obtain ‘sure’ justice recognised that speed should not be at the expense of getting it wrong. We turn now to those parts of the court system that particularly concerns domestic violence.

Support available in court to a victim/witness to domestic violence The Witness Service Victim Support was able to start flexing its muscles by the end of the 1980s and in 1990 a report from a working party of the National Association of Victim Support Schemes (NAVSS) examined the arrangements for victims as witnesses having to speak in court. Their report entitled The Victim in Court recommended separate waiting areas for prosecution and defence witnesses and that arrangement should be made for volunteers to be available to help victims having to give evidence (NAVSS, 1990). Pilot schemes tested the way in which volunteers could help in the courts (Rock, 1991) and the final outcome would be the introduction of the

Downloaded by [University of Defence] at 01:45 24 May 2016 Witness Service. The Witness Service is a national service provided by Victim Support since 1996 to help and support witnesses in Crown courts and magistrates courts before, during and after the hearing; the service is confidential and free and provided by trained volunteers. The 1996 Victims Charter had been able to report that there is now a Witness Service in every Crown court centre and they can do familiarisation visits with witnesses and someone can go with you from the Witness Service when you are in court (Home Office, 1996b: 9). The Witness Service helps: The courts, sentencing and punishment 111 • witnesses who are called to give evidence, including defence witnesses • victims of crime and their families and friends attending court for any reason • children as well as adults.

What the Witness Service cannot do, as Riding has pointed out, is actually effect the experience of being in the witness box. No amount of familiarisation visits and reassurance can soften an experience she describes as being at times ‘terrify- ing’, ‘intimidating’, ‘confusing’ and ‘stressful’ because:

One of the most unpleasant aspects of giving evidence identified by witnesses is confronting the defendant in the courtroom. The reason for this unpleasant- ness is the traditional, although not constitutional right of the accused to be confronted by the witnesses against him. (Riding, 1999)

With the best will in the world ‘the Witness Service is limited in what it can do to make the experience of testifying less unpleasant for witnesses’ (ibid.).

Witness Care Service In 2003, the No Witness No Justice project was started to try and be more helpful to victims and witnesses. As part of the project the Prime Minister and the Attorney General commissioned a partnership of the Crown Prosecution Service (CPS), the Association of Chief Police Officers (ACPO), the Home Office (HO) and the Prime Ministers’ Office of Public Services Reform (OPSR) to establish five pilot Witness Care Units in England and Wales. The objectives of the pilots were to:

• deliver a more customer focused service to victims and witnesses • enable more victims and witnesses to give evidence • reduce the rate of ineffective trials through improved victim and witness attendance at court • increase victim and witness satisfaction.

Witness Care Officers who work in the Units had either a police or CPS background and provided a Single Point of Contact or SPOC for the victim and or witness and offer tailored support to them. The pilots were favourably evaluated Downloaded by [University of Defence] at 01:45 24 May 2016 by an independent consulting company (Avail Consulting, 2004). Today Witness Care Units are run jointly by the CPS and the police and exist in all CPS areas (Home Office et al., 2005: paras 6.1–6.9). A Witness Charter was published by the agencies involved (MoJ et al., 2008).

Independent Domestic Violence Advisors (IDVAs) The IDVAs (Independent Domestic Violence Advisors) are an extension of the Witness Service and support people (victims) throughout the duration of their 112 The courts, sentencing and punishment involvement with the criminal justice system as a whole both before court and during the court hearing. IDVAs act as advocates and advisers on court processes generally and MARAC work, as well as ensuring access to all other appropriate services. Evaluation studies of the service have been favourable, reporting that up to two-thirds of women facing serious domestic violence supported by IDVAs reported that the abuse stopped after criminal proceedings (Howarth et al., 2009). A report from CAADA, the charity group Coordinated Action against Domestic Abuse, confirms this picture. In their research commissioned by the CPS they found the presence of an IDVA correlated with an earlier cessation of the violence. The women felt safely supported throughout proceedings and a more positive outcome was experienced (CAADA, 2012).

Special measures Special measures are now available in courts to help the vulnerable or intimidated witness. These measures which include screens, video links etc. have been considered in earlier chapters because they require the police and CPS to identify the people they are most likely to help to ensure the best evidence is given to the court. The courts make the final decisions based on applications for special measures made by the CPS to the court and need to be satisfied that the measures will improve the quality of evidence to the court. The majority of these measures were introduced in the Crown court in July 2002; magistrates courts followed a few years later (see Chapter 5; see also MoJ, 2011b).

Interpreters In order to ensure fair criminal trials language interpreters are recognised as necessary components of a hearing (Noakes and Butler, 1995). Other agencies like the police and CPS have an equal need for interpreters. Reliance on other family members who speak English is not sufficient and can lead to possible dis- tortions especially when there has been violence within the family. Interpreters were hired locally by courts as needed from a National Register of Public Service Interpreters (NRPSI). This system changed when a policy of using centralised interpreting services from one private agency (Applied Language Solutions) was introduced in February 2012. Problems ensued and courts reported delays and inefficiency Downloaded by [University of Defence] at 01:45 24 May 2016 (Bell, 2012); in July 2012 the parliamentary Justice Committee started an inquiry into what was going wrong.

Proceeding without the victim as witness The measures to help victims and witnesses through the court process are all premised on the importance attached to the victims’ statement in cases of domestic violence. This still places the responsibility on the victim and presupposes The courts, sentencing and punishment 113 a police over-reliance on witness statements. The pressures victims experience which may lead them to retract statements (Robinson and Cook, 2006) and the subsequent high attrition rates associated with domestic violence cases cannot be underestimated (Hester, 2006). This question of ‘retraction’ has been considered earlier in this chapter.

Evidence of bad character One of the longstanding principles of British justice has been the withholding of a defendant’s previous criminal conviction record from the current proceedings until a finding of guilty or not guilty has been decided. The rationale for this ‘shield’ has been the aim of hearing only the details of the case before them rather than any old judgements which have already been dealt with and might prejudice the case. The problem with this approach was that repeat offenders might have demonstrated ‘patterns of behaviour’ which might be relevant to the behaviour now being considered by the hearing and not least in cases of domestic violence. The existing law did permit such ‘patterns of behaviour’ that revealed ‘similar fact’ and this was at the discretion of the judge, but perhaps something more substantive was needed. The debate on revealing previous convictions during a hearing intensified throughout the 1990s. The Royal Commission on Criminal Justice proposed allowing them to be introduced (Runciman Report, 1993: Chapter 8, paras 29–34) and the Law Commission furthered the debate in two more reports (Law Commission, 1996 and 2001); arguments against the proposal were heard mainly on the grounds that just because someone has done something before it does not mean they did it this time (see e.g. McEwan, 2002; Justice, 2003). The White Paper that followed proposed changes in the law to allow the presentation of old convictions; the White Paper cited an example of domestic violence to show how the new law would help:

The defendant is charged with assaulting his wife. He has a history of violence, including a number of convictions for assault occasioning actual bodily harm, and there are witness accounts of him striking his wife in the past. He claims that she received her injuries falling down the stairs. In this case, his previous conduct could be thought relevant to determining whether the allegations of violence, or the defendant’s version of events, are Downloaded by [University of Defence] at 01:45 24 May 2016 true. The judge should therefore be able to rule whether this is admissible, provided that he is satisfied that it can be put in its proper context by the jury. (Home Office, 2002: 80)

The Criminal Justice Act 2003 ss98–108 made provisions for old convictions – or evidence of ‘bad character’ as it now became known – to be put before the court during the trial. The principles of how this should be done were laid out in the case of R v Hanson [2005] EWCA Crim 824. 114 The courts, sentencing and punishment Defences In any fair trial the accused have the right to defend themselves and sometimes – with respect to domestic violence – that defence may vary in its sophistication. A man in Halifax could not see what was wrong with hitting his wife because how else was he ‘to shut her up’:

A man admitted attacking his partner of 14 years but said he believed he had done nothing wrong… he told officers he was provoked when [his partner] made hurtful comments about his dead brother. Mrs Beadle [for the prosecution] said ‘He said there was no other way to resolve the issue but to assault her because she was shouting at him’. (Halifax Evening Courier, 16 April 2010)

In this section we consider recent thoughts on defence and in particular the defence of provocation that is often used when a man is facing a charge of murder or manslaughter. The argument is made that the nature of the provocation was such that the man lost volitional control of himself and ‘hit out’ in a violent manner; the classic ‘crime of passion’ or ‘crime passionnel’. The Homicide Act 1957 s3 states that:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

The courts have rules on what constitutes ‘provocation’. In essence it is something which causes a ‘sudden and temporary loss of self control’ (R v. Duffy [1949] 1 All ER 932n). Allegations or findings of sexual infidelity are often central to such a loss of control. This definition was said to favour men and did not help women; as such the law was said to be discriminatory. Men, with their greater strength, hitting out in a ‘sudden and temporary loss of control’, were always going to be more problem-

Downloaded by [University of Defence] at 01:45 24 May 2016 atic than when women do the same. Some women victims of domestic violence have taken the law into their own hands fatally attacking their abusers. Either way the women concerned often faced a murder charge rather than a manslaughter charge. In the UK, the role of campaign groups such as Justice for Women and Southall Black Sisters have been instrumental in profiling the inadequacies of man-made law and its response to domestic violence homicides. Women needed a better defence and not least when their provocation was slow and over a long period and had a more accumulative effect that did not lead to any ‘sudden’ actions. When women did attack men, it was more likely to be The courts, sentencing and punishment 115 considered and planned such as when the man was asleep or drunk and therefore in the eyes of the law their actions were premeditated and undeserving of the provocation defence. It was only after years of feminist activism and campaigning that the courts began to recognise this long-term abuse when hearing cases of domestic murder or manslaughter where the woman had responded with violence. Pamela Sainsbury strangled her common law husband Paul Sainsbury after eight years of violence and sexual degradation but the court heard he would beat her if she used long words he did not understand and a doctor had told the court she was ‘psychologically paralysed by this violent jealous psychopath’. Ms Sainsbury was put on probation at Plymouth Crown Court (Marks, 1991). The case led to questions in the House of Commons and the need to rethink the defence of provocation because ‘the law as it stands does great injustice and that many women are suffering life sentences that they should not be suffering’ (Hansard HC Debs 23 January 1992 cols 477–8); the Home Secretary was not persuaded. The Home Affairs Committee argued for change in the provocation law in its examination of domestic violence in 1993 but the government was not persuaded in its response (Mills, 1993). The Law Commission re-tabled the idea in 2004 (Law Commission, 2004) and again in 2006 (Law Commission, 2006) but it was not until 2008 that a formal recommendation to end the ‘provocation defence’ was put forward in the White Paper Murder, Manslaughter and Infanticide: prospects for reform of the law (Ministry of Justice, 2008).

The Government accepts the Law Commission’s analysis that the law on provocation is in need of reform but we propose a somewhat different approach. Essentially, the Government proposes to abolish the existing partial defence of provocation and to replace it with two new partial defences, based on the limbs of the Law Commission’s proposal, which may be run either separately or in parallel: • killing in response to a fear of serious violence; and • in exceptional circumstances, killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged. (Ibid.: para 24)

Harriet Harman, Minister for Women, opined that: Downloaded by [University of Defence] at 01:45 24 May 2016

There is no excuse for domestic violence, let alone taking a life. Whatever happens in a relationship does not justify resorting to violence. So men who kill their wife will have to face a murder charge and will no longer be able to claim ‘it’s her fault, she provoked me’. (Cited in Pallister and Stevenson, 2008)

Lord Phillips the then Lord Chief Justice did not like these proposals: 116 The courts, sentencing and punishment I must confess to being uneasy about law which so diminishes the significance of sexual infidelity as expressly to exclude it from even the possibility of amounting to provocation. Nor have ministerial statements persuaded me that it is necessary for the law to go that far. (Speech reported in Verkaik, 2008)

Section 3 of the Homicide Act 1957 was duly repealed by the Coroners and Justice Act 2009 s56 and in relation to the provocation defence, reducing murder to manslaughter. The provision now reads:

Where a person kills or is party to a killing they are not to be convicted of murder but of manslaughter if: (a) their acts and omissions in doing or being a party to the killing resulted from ‘loss of self-control’; (b) the loss of self-control had a qualifying trigger (see section 55); and (c) a person of their sex and age, with a normal degree of tolerance and self- restraint and in their circumstances, might have reacted in the same or in a similar way. (Coroners and Justice Act, 2009 s54)

This avoids the problem of whether the loss of control was sudden and makes it easier for the defence, particularly in respect of battered women, to run the so- called ‘slow-burn defence’ where a person has been subject to abuse over a long period of time and when a final small act leads to the killing. Other cases were profiled by feminist campaign groups including that of Kiranjit Ahluwalia and Sara Thornton. Both women had been convicted for killing their partners after years of being victims of abusive behaviour and both were now freed on appeal in 1992 and 1996 respectively (R v Ahluwalia [1992] 96 Cr App R 134; R v Thornton [1996] CLR 597).

Battered woman syndrome One of the answers to the question of ‘why women stay’ – and one of the more contentious concepts that became associated with women killing men – was that of ‘the battered woman syndrome’. The term was first used in the USA by Dr Lenore Walker to denote a woman so downtrodden by repeated violence over Downloaded by [University of Defence] at 01:45 24 May 2016 a period of time that she became apathetic to her situation. The phrase ‘learned helplessness’ and almost a ‘psychological paralysis’ described her position (Walker, 1979, 2009). The implication was that she was not always responsible for her actions and this could, therefore, be used in her defence against a charge of murder. One of the dangers with ‘battered woman syndrome’ is that it leads courts and practitioners to be looking for signs of such a syndrome and if they could not find The courts, sentencing and punishment 117 any signs then there appeared to be no defence at all. Further, suggestions of a ‘syndrome’ tend to pathologise the victim. The ‘battered woman syndrome’ was not a recognised legal defence in itself but it could be part of an argument for mitigating circumstances. The case would be put by psychologists or other qualified practitioners as a form of ‘expert witness’ testimony (Rix, 2001).

Expert witnesses Expert witness testimony may be used in court in domestic violence cases in order to clarify victim/witness statements and help courts understand the behaviour of victims. The idea is to reduce the likelihood that the jury will develop negative feelings against the victim based on myths and misunderstandings and facilitate an examination of the facts without interference of bias or emotion. The battered wife syndrome would be an example of something the expert witness could explain to a court (see also CPS, 2004).

Reporting restrictions The family and other personal details inherent in a case of domestic violence brought before the criminal courts have begged the question as to whether press reporting restrictions should be invoked. Reporting restrictions are in place for rape trials with anonymity being granted to the parties involved. Should the same restrictions be available in domestic violence cases? The White Paper Safety and Justice considered the arguments for and against. The traditions of a free press are that media sources should be free to report court proceedings. In practice this means the newspaper reporting rather than radio or TV which is currently still not permitted. The European Convention on Human Rights requires criminal trials to be ‘a fair and public hearing’ (Article 6(1), emphasis added) and we always talk of justice ‘being seen to be done’. Reporting restrictions might encourage more reporting and be supportive of more prosecutions but then most domestic violence victims are arguably more fearful of consequences from their partners than they are of press reporting. ‘Special measures’ offer a degree of protection but were they sufficient? (Home Office, 2003a: paras 25–29).

Downloaded by [University of Defence] at 01:45 24 May 2016 Pre-Sentence Reports Pre-Sentence Reports or PSRs are written on defendants by probation officers or social workers to provide information to the sentencing court about the offender and the offence committed; the aim is to get better informed sentencing decisions. Formerly known as the Social Inquiry Report the PSR was introduced by the Criminal Justice Act 1991 and was expected to be written in accordance with National Standards published by the Home Office (Home Office et al., 2002). Today the PSR is defined in law as: 118 The courts, sentencing and punishment a report which: (a) with a view to assisting the court in determining the most suitable method of dealing with an offender, is made or submitted by an appropriate officer, and (b) contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State. (Criminal Justice Act, 2003 s158)

The PSR is supposed to advise on both the offender and the offence including an assessment of why the offence had been committed, the context in which it was committed and the offender’s attitude to the offence. An assessment of possible further re-offending is included as too are sentencing options for the court and potential treatment programmes that might be suitable.

Victim Personal Statements One attempt to give the victim a more central position in the criminal justice system has been to get their personal feelings about a crime into the court hearing through the means of a Victim Personal Statement (VPS). These were introduced in October 2001 after pilot studies in London, Merseyside, Lancashire, Hampshire, Bedfordshire and Sussex. As we saw in Chapter 4, the VPS is taken by the police and has no legal standing; the Lord Chief Justice has provided guidance to courts in the form of a Practice Direction [2001] 1Cr App R (S) 39. The VPS is an optional statement by the victim explaining the effect the crime has had on them. It is taken by the police and should also contain details about the victims’ on-going safety, and intimidation they might be being subjected to or the defendant’s bail status. The VPS may also include the victim’s support for a prosecution, and their need for any other forms of help; it must not contain views on what any final court punishment should be (Roberts and Manikis, 2011). The coalition government has stated its proposals to review the VPS and give it greater status by making it better understood and therefore more widely used (MoJ, 2012a: paras 100–4). In 2005 the former Department of Constitutional Affairs started another consultation exercise looking at ways to bring the victim’s voice more directly into the courts. In particular it sought views on how to bring the voice of bereaved families Downloaded by [University of Defence] at 01:45 24 May 2016 and relatives into court following murder and manslaughter trials. A pilot Victims Advocate Scheme followed in London, Birmingham, Cardiff, Manchester and Winchester whereby relatives were enabled either directly or through a representative to let the court know how the death had affected them both at the finding of guilt stage and at the sentencing stage. The pilot schemes were duly evaluated and the scheme was rolled out nationwide as what now became known as the Victim Focus Scheme (Sweeting et al., 2008; see also CPS guidance on Homicide Cases at http://www.cps.gov.uk/legal/v_to_z/homicide_cases_- _guidance_on_cps_ser- vice_to_bereaved_families, accessed 3 August 2012). The courts, sentencing and punishment 119 Sentencing the perpetrators of domestic violence How should the criminal courts deal with men – and sometimes women – who are convicted of offences amounting to domestic violence? The sentencing of people for any criminal behaviour has evolved over the years within the parameters of the criminal law and based on the precedents laid down by earlier court judgements. Ideas of such concepts as seriousness, culpability and the amount of harm caused have varied with time and cultural changes. In recent years attempts have been made to formally identify what we think sentencing is all about and to provide written guidelines to those we entrust to make these sentencing decisions. The sentencing decision remains the decision of the court in any individual case, but a series of five purposes of a sentence were outlined in law for the first time in 2003:

(a) the punishment of offenders (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders (d) the protection of the public (e) the making of reparation by offenders to persons affected by their offence. (Criminal Justice Act, 2003 s142 (1))

The Appeal Courts originally gave out guidance to other courts on matters of sentencing in so-called ‘guideline decisions’. As we outlined in Chapter 3, in 1999 the Sentencing Advisory Panel (SAP) was formed to provide in-depth and fully researched guidance for the Appeal Courts and they were joined in 2004 by the Sentencing Guidelines Council (SGC). The Sentencing Guidelines Council published guidelines on the general concept of offence ‘seriousness’ in December 2004 which it broke down into two main parameters – the culpability of the offender and the harm caused or risked being caused by the offence (SGC, 2004). The SGC went on to publish more specific guidance on cases of domestic violence and breach of a domestic violence and other protective orders in December 2006 (SGC, 2006a, 2006b). The Council has reaffirmed the starting point that offences committed in a domestic context should be regarded as being no less serious than offences committed in a non- domestic context. The Sentencing Advisory Panel continued to provide reports for the SGC who

Downloaded by [University of Defence] at 01:45 24 May 2016 now produced the definitive sentencing guidelines that every criminal court had to follow (Criminal Justice Act 2003 s172). Today the SGC and the SAP have been merged to form the Sentencing Council that now publishes all ‘sentencing guidelines’ (Coroners and Justice Act 2009 s118).

Offence seriousness The critical decision in sentencing is that of the seriousness of the offence and the law is explicit about the components of seriousness: ‘In considering the 120 The courts, sentencing and punishment seriousness of any offence, the court must consider the offenders culpability in committing the offence and any harm which the offence caused’ (Criminal Justice Act 2003 s.143 (1)). How is it possible to determine degrees of ‘culpability’ and ‘harm’? The SGC guidelines provide four general levels of criminal culpability:

• the intention to cause harm as the highest level of culpability • a degree of recklessness and no thought being given to the consequences of any actions • a person having knowledge of possible harm but no intent • a finding of negligence as the lowest level of culpability. (SGC, 2004: paras 1.6–1.7)

There are equally various forms of harm to victims of domestic violence from physical injury, through to sexual violation, financial loss and psychological distress (ibid.: paras 1.8–1.11). When it comes to domestic violence a number of factors have been identified which will either aggravate or mitigate the degree of seriousness:

Aggravating factors: • abuse of trust and abuse of power • the victim is particularly vulnerable • impact on children • using contact arrangements with a child to instigate an offence • a proven history of violence or threats in a domestic setting • a history of disobedience to court orders • the victim was forced to leave home.

Mitigating factors: • positive good character • provocation. (SGC, 2006: paras 3.1–3.23)

The impact on children has been viewed as increasingly important and the witnessing of domestic violence by children now constitutes part of the legal definition of ‘significant harm’ that could lead to children being the subject of protective Downloaded by [University of Defence] at 01:45 24 May 2016 or care interventions (Children Act 1989 s31 as amended by the Children and Adoption Act 2002 s120); this law was implemented from January 2005.

Personal mitigation It is also possible for a court to take into account ‘personal mitigation’ that relates to the offender rather than the offence. This might include personal testimonies, admissions of remorse and cooperation with a police interview (Criminal Justice Act 2003 s166 (1)). The courts, sentencing and punishment 121 Reduced sentences for a guilty plea A court may also take into account a ‘guilty plea’ from the accused when determining a sentence (Criminal Justice Act 2003 s144) and if made at the first reasonable opportunity the original advice was that this may lead to as much as a one-third reduction on a sentence (SGC, 2004: paras 1.26–1.27). The purpose was to save time and money and was all about the effective administration of justice rather than being another form of mitigation. The principle of ‘guilty pleas’ coming in as early as possible was later sup- plemented by further guidance which offered a ‘sliding scale’ of reductions based on the stage at which the admission was made. This ranged from a third for an immediate admission through to one-tenth for so-called ‘at the doors of the court’ admissions. Reductions of sentence could also be limited when the prosecution evidence was ‘overwhelming’. The reasons for all reductions on the basis of ‘guilty pleas’ have to be stated in open court (for further details see SGC, 2007). In sentencing in domestic violence cases the guidelines suggest the views of the victim should not be a factor either way. The victim should not feel a responsibility for the sentence imposed and it is always possible that a plea for a lighter sentence has been made under threat from the perpetrator (SGC, 2006: paras 3.1– 3.23, 4.1ff).

Custody thresholds The Criminal Justice Act 2003 went on to say that imprisonment or custody should only be used when the offence was so serious that neither a fine nor a community sentence could be justified (s152(2)) and that a community sentence should not be used. The sentences available to offenders can be broadly categorised as fines, community orders or custodial orders. In the case of those who commit offences classed as domestic violence the breakdown into these three categories is not fully known; the Home Affairs Committee recorded its concern at this state of affairs:

There is currently no collection or analysis of data on sentencing by type (except in SDVCs), nor on the amount of fines. The Government urgently needs to collate and evaluate data on the types of sentence being handed down in domestic violence cases, including the amount of any fines and

Downloaded by [University of Defence] at 01:45 24 May 2016 the number of community sentences, and the effectiveness of different sentencing options, both in terms of reducing repeat offending, and in terms of ensuring the safety of the victim. (House of Commons, 2008: para 302)

Fines Perpetrators of domestic violence may receive a fine as punishment. The House of Commons Home Affairs Committee again expressed their concern that no 122 The courts, sentencing and punishment statistics were kept on just how many people were fined for domestic violence and how much they were fined. They heard that it could be ‘for risibly small amounts’ (ibid.). The idea of the fine is to punish people financially and they are usually associated with the less serious offences. The offenders’ ability to pay will be taken into account but there are concerns that many people do not pay their fines. The situation can be further complicated in domestic violence cases, as if the offender has control over his partner’s finances; the reality may be that the victim can end up paying the fine.

Community orders Community orders are the current name for punishment allowing the offender to remain out of custody and still live in the community. In former times this might have been referred to as being ‘on probation’ or doing ‘community service’. Today a generic community order is made and then ‘customised’ to the needs of the individual offender by adding on ‘requirements’. These possible requirements are twelve in number and the offender must complete:

• a period of unpaid work (from 40 to 300 hours) • a period of supervision (up to a maximum of 36 months) • an accredited programme (the length to be expressed as the number of sessions; must be combined with a supervision requirement – see below) • a drug rehabilitation programme (from 6–36 months; the offender’s consent is required) • an alcohol treatment programme (from 6–36 months; the offender’s consent is required) • a mental health treatment programme (up to 36 months; the offender’s consent is required) • a period of approved residence (up to 36 months) • a programme of specified activity (up to 60 days) • a time period when certain activities are prohibited (up to 36 months) • a time period of exclusion from a given geographic area (up to 24 months) • a curfew time period (up to 6 months and for 2–12 hours in any one day; if a stand-alone curfew order is made, there is no probation involvement) • a period at an Attendance Centre (12–36 hours with a maximum of 3 hours Downloaded by [University of Defence] at 01:45 24 May 2016 per attendance). (all outlined in Criminal Justice Act 2003 s177 (1))

The Probation Service had always worked with men who had been convicted for domestic violence offences but an Inspectorate report on this work in 2004 still revealed areas for improvement. The deficits included few probation areas having comprehensive up to date domestic violence policies, no outcome-focused targets for probation domestic violence work and areas not ensuring that staff The courts, sentencing and punishment 123 had appropriate knowledge, understanding and skills in domestic violence work (HMIP, 2004: 5). A lack of liaison between the probation officer and the police was also noted when, for example, the probation officer was making no attempt to ask the police about any domestic violence related call-outs they had been having; the development of the MARAC (Multi Agency Risk Assessment Conferences) attended by both services should have improved this position (see Chapter 7). Individual area Probation Services had started various Offender Behaviour Programmes in the 2000s and earlier and these included courses for perpetrators of domestic violence to try and increase their understanding of what they were doing, to point out that men ‘use’ control as opposed to ‘loose’ control and reduce possible future offending behaviour. To monitor standards of courses both in the community and prison settings the Correctional Services Accreditation Panel was established in 2004 to have a more formal oversight of these courses. The Panel seeks to ensure the integrity of courses and that they are evidence based; today the Panel is accountable to the Ministry of Justice (see Ministry of Justice website for a full list of accredited Offender Behaviour Programmes http://www.justice.gov. uk/offenders/before-after-release/obp, accessed 27 July 2012). The two main domestic violence programmes that have been accredited by the Panel are:

1 The Community Domestic Violence Programme (CDVP) suitable for male offenders convicted of violent attacks on their female partners, any offender already known to the Probation Service who acknowledges that violence is a feature of his relationships and is motivated to change his behaviour; and offenders convicted of offences which stop short of direct physical violence but have the same intention (e.g.: threats to kill, harassment, kidnap, malicious calls, threatening behaviour or criminal damage); this course lasts for 28 sessions of two hours each. 2 The Integrated Domestic Abuse Programme (IDAP) is suitable for male offenders who are or were in significant relationships with women and have been assessed as being at medium to high risk of relationship violence and have committed at least one act of violence against an intimate partner; the men have to have accepted responsibility for their abusive behaviour and want to change it and be willing to sign a consent form which will include the sharing of information with their wife or partner. Downloaded by [University of Defence] at 01:45 24 May 2016

The probation service has in the past experienced difficulty in providing these accredited courses to the perpetrators of domestic violence. The Home Affairs Committee heard evidence from them that sometimes the waiting list for a course was so long that the period of supervision by probation was nearing its end and it was pointless for them to start because they would not have time to complete it (House of Commons, 2008: 1–11Appendix 50). Other research confirms this lack of availability (NAO, 2008: para 3.40) and has also been critical of the courses themselves for being inflexible and ignoring the broader social needs of offenders 124 The courts, sentencing and punishment (Bullock et al., 2010; see also Madoc-Jones and Roscoe, 2010 for an account of the partners’ wives’ view of programmes). Farmer and Callan (2012: 3) concluded that:

Programmes and other approaches to perpetrators tend to have a poor track record in addressing underlying motivators for abusive behaviour and thereby helping them to stop. Breaking cycles of violence and abuse is essential if perpetrators are not to take destructive patterns of behaviour into future relationships.

One further element that we touched on in Chapter 3 is the advent of the ‘payment by results’ philosophy which could well be applied to the programmes for perpetrators of domestic violence (MoJ, 2010). Community orders may also include the requirement for the offender to wear an electronic tag. This can be an added requirement on top of any of the 12 main requirements listed above. Electronic monitoring of this kind has become increasingly popular as early technical problems have been resolved and is likely to get more popular in the future as prisons become overcrowded and the Ministry of Justice seeks to reduce its costs. The current system is based around keeping a person in one place with an electronic tag around their leg and subject to a legal curfew based on telephones and home-based equipment. More ‘intelligent’ GPS systems to track a person’s whereabouts more accurately, wherever they are, are being developed as are electronic systems for the ‘long-arm’ measuring of alcohol intake (Watt, 2012). Private companies install and operate the actual field equipment for electronic monitoring; SERCO and G4S are leaders in the field. Probation officers and courts have to liaise with them. The contracts with the private companies are lucrative and set to increase in the future (Morgan, 2012). Criticism of electronic tags has been made concerning the poor communication between the three agencies responsible for arrangements – the private companies, the probation service and the courts. Breakdowns in these communications have led to inappropriate use of tags, delays in installation and delays in enforcement. One report suggested as many as 50 per cent of those tagged were violating their curfews with no real consequences (CJJI, 2012). NAPO, the probation officers trade union, has described the system as ‘flawed’ and cited numerous examples of men being tagged to houses where their wives experienced domestic violence and Downloaded by [University of Defence] at 01:45 24 May 2016 examples of women similarly tied to homes for non-violent offences with violent men (NAPO, 2012). The Legal Aid Sentencing and Punishment of Offenders Act 2012 s71 increased the amount of time a person could be on a home curfew monitored by an electronic tag from 12 hours up to 16 hours. The campaign group Justice (2011) had pointed out the dangers here for domestic violence:

[a 16 hour curfew] could contain him/her in premises where s/he may perpetuate or fall victim to domestic violence, abuse or neglect. This is of particular The courts, sentencing and punishment 125 concern in relation to children. Further, increasing the extent of curfews in this way may result in a ‘ratcheting up’ of curfew requirements and community sentences generally.

Protective orders Protective orders are those civil court orders we met in Chapter 4 placed on certain individuals to regulate their behaviour and not least their behaviour as related to domestic violence. Breach of such orders is either a ‘contempt of court’ or a criminal offence depending on the orders statutory basis. Relevant protective orders include restraining orders, violent offender orders, anti-social behaviour orders, domestic violence protection orders, harassment orders and non-molestation orders. Separate advice has been issued by the SGC on the subject of those who breach protective orders. Behaviour that breaches a protective order may also constitute a separate substantive offence in its own right – e.g. if a man subject to a restraining order confronts the person he is expected to stay away from and assaults her. The SGC points out that in sentencing for a breach of this nature the defendant should be prosecuted on both counts. If this does not happen the SGC recommends the substantive offence be prosecuted and the breach should constitute an aggravating factor (SGC, 2006b). In all cases the protective order had been made to protect an individual and any sentence for breach should ensure the order is complied with in future to achieve that protection. The original behaviour is important because it allows a level of harm to be determined by the breach – the sentence is, however, for the breach alone and not to punish a second time for the original behaviour.

Custodial sentences Research demonstrates that only a small proportion of offenders in domestic violence cases are given custodial sentences. Hester’s (2006) research into attrition across the Northumbria Police Force area found that out of 869 domestic violence cases recorded by the police, only four resulted in custodial sentences. Custodial sentences of imprisonment represent the most severe punishment available to the UK courts. In deciding whether or not imprisonment is necessary the courts must Downloaded by [University of Defence] at 01:45 24 May 2016 take note of the Criminal Justice Act 2003 152 (2) which requires them to only imprison when a fine or community sentence is not justified. Most custodial sentences are passed by Crown courts and magistrates courts are limited in only being able to pass sentences of 12 months maximum. Prisons are spread across the country with local ones taking the less serious offenders with the more serious being passed on to dispersal prisons. The prison regime includes ‘sentence planning’ with the prisoner in order to make best use of his or her time in custody in terms of education, training and other programmes that might be available. 126 The courts, sentencing and punishment The Healthy Relationships Programme is an accredited Offender Behaviour Programme for prisoners known to have been violent in domestic settings. The Programme helps men to recognise and avoid violent behaviour and seeks to pro- mote change within those prisoners; the programmes are either of high intensity or moderate intensity depending on the people attending. Twelve Healthy Relationships Programmes were reported to be in existence in UK prisons at the start of 2010 (Hansard HC Debates 26 January 2010 col.718W; see also Bowen, 2010). Prisoners may be entitled to early release if they are willing to wear an electronic tag for a given period of time. This scheme is known as the Home Detention Curfew (HDC) and was introduced in 1999. Prisoners were originally released 60 days early but the scheme was generally considered successful and this was later increased to 90 days in 2002 (MoJ, 2011b).

Leaving custody Some victims of serious crime including victims of domestic violence may be informed when the person who attacked them or their families is due to leave prison. This service was first outlined in the 1990 edition of the Victims Charter and repeated in the 1996 second edition:

In life sentence cases and other cases involving serious sexual or violent offences, the probation service will get in touch with you within two months of the sentence being passed to ask if you want to be told about any plans for releasing the prisoner. (Home Office, 1996b: 12; see also Home Office et al., 1995: 45; ACOP and Victim Support, 1996)

In non-life-sentence cases the custodial period had to be 12 months or more. Any concerns the victim may have would be taken into account in considering what conditions if any might be placed on the offender upon release; the victim is not able to influence whether or not the offender should be released. The recent high profile case of the release of Raoul Moat indicates that for some domestic violence victims, release of the offender has life threatening consequences (Gadd, 2012). Unsuccessful attempts had been made to put these arrangements on a statutory basis (Hansard HC Debates 28 March 1994 cols 747–756). The Domestic Downloaded by [University of Defence] at 01:45 24 May 2016 Violence, Crime and Victims Act 2004 s35 has now put them on such a basis (see also Home Office et al., 2005: paras 10.1–10.6).

Summary This chapter has provided a brief overview of the courts’ structure in England and Wales. Support servicers to victims of domestic violence who have to act as witnesses have been developed and the purposes of sentencing are more clearly laid out than at any time in their history. 7 Responding to domestic violence

Introduction Working together to prevent and respond to domestic violence is now accepted as good practice, though this was not always the case. There are several strands that can be identified in influencing and establishing the history of working together and multi-agency work around domestic violence. This chapter lists and describes these different strands and explores the multi-agency response to domestic violence, its history and developments from the 1970s to the present day. We begin with a somewhat unconventional starting point when considering domestic violence – the field of child abuse and child protection.

The 1970s Child abuse and child protection The history of welfare agencies ‘working together’ can be traced back to the early 1970s in the field of child abuse and child protection. The death of 7-year- old Maria Colwell in 1973 was pivotal in this and kick-started a programme of reform. Maria was born in 1965 and was the youngest of five children. Neighbours reported that Maria was being abused and was often covered in bruises. She was known to the NSPCC and to the then Social Services Department. In hospital she was pronounced dead from severe bruising and internal injuries. Her stomach was completely empty. This resulted in a major public inquiry that was critical of the social workers involved and of other agencies: ‘It was emphasised frequently in Downloaded by [University of Defence] at 01:45 24 May 2016 the course of the inquiry… that there were many times when the social workers concerned with Maria simply did not know who else was involved and the nature of their involvement’ (DHSS, 1974: para 152). The review concluded that agencies were found to be working in isolation from each other with differing aims and objectives that nonetheless overlapped. Information was not shared and agencies saw each other in term of stereotypes and with little understanding of what each other did. In the field of child abuse this included agencies such as the social services departments, hospitals, the police, GPs, health visitors, schools, housing departments and others. Bringing agencies 128 Responding to domestic violence together in the format of multi-agency work or inter-agency work was a recommendation emerging from the inquiry report. The DHSS wrote to all the agencies involved and recommended ways to improve liaison and collaborative working. Area Review Committees would bring together senior staff from the constituent agencies to agree protocols for working together and written guidance for working together. The format of the ‘case conference’ involving the professionals and practitioners from the different agencies dealing with a particular child or family literally sitting around the same table to find out who knew what and to agree who would do what would became standard. This guidance provided the model for multi-agency working both with children and other groups of people over the next 40 years (DHSS, 1974). This initial guidance did not include the police as one of the agencies to be involved with child abuse but this position was soon changed by later guidance that wanted them involved ‘as closely as possible in the case conference structure’ (Home Office, 1976). In 1988 the Area Review Committees were replaced by the Area Child Protection Committees and they in turn were replaced by the Local Child Safeguarding Committees in 2004. The ‘Working Together’ guidance to child protection practitioners and professionals became ever more complex and detailed (see e.g. DoH, 1991). Serious Case Reviews (SCRs) on child deaths were originally known as ‘Part 8 Reviews’ when introduced by the Children Act 1989. ‘Part 8’ was that section of the relevant guidance at the time. The idea was to learn immediate lessons when a child’s death in a given geographic area was non-accidental and possibly prevent- able had the child protection agencies provided a more effective service (DoH, 1991). In time the SCR would become the model for the Domestic Homicide Review (DHR) (see Chapter 3). The multi-agency arrangements for protecting and safeguarding children that had started in 1974 were the first arrangements to be made of this nature and probably the most sophisticated. Other similar arrangements have followed their pathway including multi-agency work in community policing, crime prevention, and public protection and domestic violence.

The 1980s Women’s Aid Federation

Downloaded by [University of Defence] at 01:45 24 May 2016 Another strand for developing multi-agency approaches came specifically from the domestic violence field. Multi-agency working around domestic violence was very much in its infancy in the 1980s in the UK. There was no government leadership on domestic violence and responses to domestic violence remained largely uncoordinated. Hague and Sardinha (2010: 511) recall the early struggle that women’s groups had in getting both voluntary and statutory organisations to recognise and coordinate their response to domestic violence. Responding to domestic violence 129 Women’s Aid was established quite quickly nationally as the main body, coordinating the new refuges and domestic violence projects… For a time, however… no one else was interested, and statutory and voluntary sector agencies turned their back on the women’s movements and the new projects.

Malos (2000) argued that ‘multi-agency approaches were initially pioneered by Women’s Aid and other women’s voluntary sector organisations in the 1980s’ (cited in Harne and Radford, 2008: 178). Women’s Aid was instrumental in trying to engage other agencies to respond to domestic violence for many years (Hague, 1997). Activism was integral to the development of service provision, a point that is ‘sometimes forgotten by professionals today’ (Hague and Sardinha, 2010: 510). The idea for multi-agency and partnership approaches to domestic violence developed in the late 1980s and coincided with the role of criminal law in protecting victims and holding abusers accountable becoming a critical element of public policy responses to domestic violence (Harwin, 2006). The Home Office circular 69/1986 made a number of suggestions as to how the police could better support victims of rape and domestic violence. The police were directed by Home Office guidance to work in partnership with relevant agencies and as such were one of the first statutory agencies to work with Women’s Aid (Harne and Radford, 2008). In the late 1980s multi-agency approaches to domestic violence began to take shape. Meanwhile, while domestic violence multi-agency working was still in its infancy in the early 1980s in England and Wales, in the USA an exciting initiative was starting that continues to shape domestic violence work today all over the world. This initiative took place in Duluth, Minnesota and is commonly referred to as the ‘Duluth Model’ (though note that many mistakenly refer to the Duluth Model to mean only the perpetrator part of the initiative). The origins of the Duluth approach are described in Pence and Paymer (1993). In summary, in Duluth in 1980 a particularly brutal domestic violence homicide occurred and the Duluth Domestic Abuse Intervention Project (DAIP) found that an opportunity had arisen to foster this outrage into an experiment with a new model of working. It was agreed that women’s safety would be the communities’ responsibility and a comprehensive overhaul of the police, court and social services responses would take place. It would no longer be the woman’s responsibility to end the violence – the community would be responsible for her safety and as part of this, men’s violence would be confronted. In 1981 nine agencies adopted coordinated policies and procedures, coordinated by the DAIP. Downloaded by [University of Defence] at 01:45 24 May 2016 As other areas started to acknowledge the extent and damage caused to their communities through domestic violence (and the role of gender within this), many became keen to understand the benefits of multi-agency working and started to flock to Duluth in an attempt to understand its approach. As stated above, the approach is sometimes misunderstood to be purely about the intervention service to abusive men (the domestic violence perpetrator programme), though its under- pinnings are clearly about a whole systems multi-agency approach. Pence and Paymer (1993) explain: ‘It is vital that policies and procedures for intervention in domestic assault cases be founded on a sound theoretical basis which protects 130 Responding to domestic violence battered women, helps judicial system practitioners discharge their public duties, and renounces the practice of victim blaming’. They listed a range of principles of the policies and procedures of the DAIP, which included:

• The first priority of intervention should be to carry out policies and protocols which protect the victim from further harm and whenever possible, the bur- den of holding abusers accountable should rest with the community, not the victim. • To make fundamental changes in a community’s response to violence against women, individual practitioners must work cooperatively, guided by training, job descriptions, and standardized practices that are all oriented toward the desired changes. • Intervention must be responsive to the totality of harm done by the violence rather than be incident or punishment focused. • The courts and law enforcement agencies work cooperatively with victim advocacy programs and provide the advocacy/shelter program and victim with the broadest possible access to legal information. • All policies and procedural guidelines benefit from review by members of the communities not represented by majority culture (e.g., communities of col- our, the gay/lesbian/bisexual community, people who are low income). Their review should include a close look at monitoring procedures to safeguard against the use of race, class, or lifestyle biases in implementing policies. (Pence and Paymar, 1993)

The 1990s Interagency forums In the early 1990s domestic violence interagency forums were developed with the aim of building a coordinated response to domestic violence in local areas, in response to widespread criticism about the inadequacy of service provisions for victims (Hague, 2000). Forums involved both voluntary and statutory agencies and it was not uncommon for there to be scepticism and tensions felt by both sectors. This is perhaps to be expected as, despite the forum members uniting with a common purpose, the underlying philosophies and ways of defining domes-

Downloaded by [University of Defence] at 01:45 24 May 2016 tic violence often differed between agencies. Despite difficulties of information sharing, confidentiality and power struggles between agencies the multi-agency approach to domestic violence was influential and by the late 1990s there were approximately 200 local interagency forums nationally which developed in a variety of ways to network, share information and best practice, raise awareness and develop educational or preventative work. Home Office guidance issued in July 1990 outlined the priorities of the police role as firstly protecting the victim and then considering what action should be taken against the offender, in carrying out this role: Responding to domestic violence 131 The immediate protection of the victim may involve the police in referring or taking her to a shelter or in liaising with statutory or voluntary agencies who can supply longer-term help and support. Such agencies include doctors; health, social services and housing authorities; voluntary bodies such as victim support groups and refuges for battered women; and citizen’s advice bureaux. (Home Office, 1990a: para 8)

Further Home Office advice was issued in 1995 to encourage greater inter-agency cooperation between local agencies working in the field of domestic violence. This circular was intended to move away from the immediate actions of agencies and to be of particular use to those intending to establish local domestic forums in order to create a more co-ordinated approach in their area (Home Office, 1995). Between 1993–6 a major national ‘mapping’ study was conducted to identify domestic violence multiagency initiatives in the UK (see Hague et al., 1996). The research demonstrated that refuges and the police were the most likely agencies to be involved, but that other statutory agencies such as probation, social services and housing were less likely to be active and that education and health services were more than likely not represented at the forums (Hague et al., 1996; Hague, 1997). Despite identifying good practice, Hague (1997) suggests that in some instances interagency forums could become mere talking shops, ‘a smokescreen to disguise inaction’ (p. 93). Hague (1997: 100) further found a ‘lack of resources’ to support interagency development, competing funds between forums and emergency services, and an overall lack of government guidance, with the exception of the Home Office Inter Agency Circular (Home Office, 1995). Despite these early teething problems, the co-ordination of services and the multi-agency response was widely acknowledged as the most appropriate response to domestic violence (Hague, 2000; Humphreys et al., 2001). The Department of Health published its own advice to local authorities on implementation of the domestic violence provisions of the Family Law Act 1996 and reaffirmed the need for coordination:

A range of local authority services may become involved and a social worker may need to liaise closely with, for example, housing and education. At the same time a range of health professions may also be actively involved Downloaded by [University of Defence] at 01:45 24 May 2016 as possibly might be police (domestic violence units), the criminal courts, guardians ad litem, solicitors, probation, social security and local support groups for women including refuges. (DoH, 1997: para 34)

Community policing and crime prevention A further approach to developing multi-agency working came from the government who were keen to adopt a partnership approach to ensure more effective 132 Responding to domestic violence responses to tackling crime (Burnett and Appleton, 2004). Multi-agency and partnership working was strongly linked to crime prevention (Harvie and Manzi, 2011). Community policing was an attempt to get police and communities closer together. According to some observers at the time:

for a variety of reasons, not least the development of their own ‘profession- alism’, policemen, social workers and other local authority representatives have grown remote not only from their communities but also from each other. This lessens each agencies chance to be effective, and permits conflicting policies to emerge which often work to mutual disadvantage. (Moore and Brown, 1981: 16)

The Scarman Report on the Brixton riots of 1981 took up the theme with its ideas of getting policing closer to communities to avoid the stand-offs that had led to the riots (Scarman Report, 1982). Crime prevention had been on the police agenda since the 1960s but consisted of not much more than a police officer – the Crime Prevention Officer – visiting a household following a burglary to tell the home owners how they might better protect their property in the future. In the 1980s attempts were made to make crime prevention a more multi-agency business:

For local authorities the aim should be to ensure that those involved with planning and provision of services always take account of the scope for preventing crime in their day-to-day activities, even where the potential for this may not be immediately apparent. Essential to this is the systematic exchange of information between local agencies. The police will no doubt wish to review and broaden their crime prevention activities in relation to local agencies. (Home Office, 1984: para 3)

Policy development for domestic violence in the 1990s mirrored policy development in other fields such as child protection and crime prevention and promoted inter-ministerial policies nationally and multi-agency initiatives at a local level. The 1990s marked a period in which domestic violence began to be taken more seriously. This was demonstrated not only by the development of a coordinated response to domestic violence but by wider recognition of domestic violence as Downloaded by [University of Defence] at 01:45 24 May 2016 ‘a crime’. New Labour came to power in 1997 and local authorities had to start seeing a crime prevention role for themselves. In the late 1990s administrative ‘working together’ guidance on crime prevention was firmed up in legislation. The Crime and Disorder Act 1998 required all local authorities and Chief Constables as ‘responsible authorities’ to draw up crime prevention strategies between themselves (s5(1)). Other agencies such as health authorities and probation services were to join in and cooperate with them (s5 (2–3)). The resulting partnerships were variously known as Community Safety Partnerships or Crime and Disorder Reduction Partnerships. Responding to domestic violence 133 Findings of the effectiveness of Crime and Disorder Reduction Partnerships are mixed. Diamond et al. (2004) concluded that while CDRP’s had made steady progress, most had some way to go before they would be able to develop effective domestic violence interventions. Radford and Gill (2006) noted that multi-agency working can be less effective when no agency takes the lead role. Harvie and Manzie (2011: 91) suggest that CDRPs and their focus on ‘a criminal justice discourse’ led to the statutory sector dominating and voluntary agencies and women’s groups being marginalised. Despite the government publishing Living Without Fear: An Integrated Approach to Tackling Violence Against Women (Women’s Unit, 1999) the government’s approach to domestic violence was couched largely in terms of implementing criminal justice measures and crime reduction.

The 2000s A series of governmental policies supported the development of multi-agency initiatives at the turn of the century. Domestic Violence: Break The Chain Multi- Agency Guidance for Addressing Domestic Violence (Home Office, 2000d) was very clear about the benefits of such an approach, with the foreword by Home Office Minister Paul Boateng stating:

To be effective, the agencies must work together, not in isolation nor perhaps at cross-purposes. They must co-ordinate their response. Partnership working between different public agencies might at times seem time-consuming and difficult. However the benefits to be gained from such work should not be underestimated. Investing time and effort at this stage is essential to tackle the appalling effects of domestic violence and in the long term, if we are successful, to reduce the immense economic cost of dealing with such crime and its consequences. (Home Office, 2000d: 2)

Two months later guidance specifically for the police advised:

The importance of liaising with statutory and voluntary agencies who can supply other forms of help and support should also not be underestimated. Such agencies include doctors, nurses, midwives, social services, housing Downloaded by [University of Defence] at 01:45 24 May 2016 authorities, victim support groups, refuges for victims, rape crisis services, other community groups and local solicitors and citizens’ advice bureaux. (Home Office, 2000a: Section 4)

A few years later, in 2003, Safety and Justice (Home Office, 2003a) set out the government’s proposed strategy for tackling domestic violence based on prevention, protection and justice for victims. These proposals included: making common assault an arrestable offence; a register of domestic violence offenders; improving the way the law on homicide operates in domestic violence cases; and 134 Responding to domestic violence establishing multi-agency reviews after domestic violence homicides to learn the lessons on how agencies might have prevented the death. A further push for multi-agency working occurred in 2002 when Holly Wells and Jessica Chapman were murdered in Soham, Cambridge (known as the Soham murders). As the pieces of the jigsaw were slowly put together, it became clear that information had not been shared across police forces that would have led to alarm bells ringing about the suitability of Ian Huntley (the murderer) to hold a position as a school caretaker. As Westmarland (2011) highlights, this led to the ‘entrenching’ of multi-agency working in domestic violence cases. It also led to the development of new Home Office (2003b) guidance on information sharing in domestic violence cases (Douglas et al., 2004).

Multi Agency Public Protection Arrangements (MAPPA) Multi Agency Public Protection Arrangements (MAPPA) emerged from early informal arrangements in place between the police and the probation service to better coordinate activities concerning adults considered ‘dangerous’ (see e.g. McDonald, 2000; Kemshall and Maguire, 2001). MAPPA arrangements were formalised by the Criminal Justice and Courts Services Act 2000 to facilitate multi-agency working between agencies having oversight of registered sex offenders and other people considered ‘dangerous’ within a given geographic area; these known offenders are classified as levels one, two or three with three being considered the most likely to re-offend (see Bryan and Doyle, 2003; MoJ and NOMS, 2012). The 2000 Act defined the police and probation as the ‘responsible authorities’ who have to lead and make these multi-agency arrangements with other agencies such as social services or children’s departments, housing authorities, health authorities and others being given a ‘duty to cooperate’ as necessary. The MAPPA are required to produce an annual report on their work for their local communities and are given detailed guidance on how to conduct themselves. In 2009 guidance was given to MAPPAs that Serious Case Reviews should be carried out when an offender managed by MAPPA at levels two or three committed a serious further offence. The guidance stated that it is ‘essential’ that the ‘activities of the agencies involved is scrutinised and this must be a transparent process’ (MoJ et al., 2009: para 28.1); it also states that ‘the [SCR] report must not be widely distributed or published’ (ibid.: para 28.14). A summary of the Downloaded by [University of Defence] at 01:45 24 May 2016 report known as the Overview Report should be shared with the victim/family but not with the public; it should be marked ‘Restricted’ (ibid.: para 28.15). This guidance was updated in 2012 (MoJ and NOMS, 2012). All of these multi-agency arrangements for child protection, community policing, crime prevention and public protection have arguably evolved from an initial model laid down in the 1970s for child protection. The LCSB and MAPPA are both reflexive in also having built in arrangements to review their own work when something serious has ‘gone wrong’ and ‘lessons need to be learnt’. We have covered them here in some detail because they are the forerunners to the Multi Responding to domestic violence 135 Agency Risk Assessment Conference (MARAC) now used in serious domestic violence cases and the Domestic Homicide Reviews now introduced by the Domestic Violence, Crime and Victims Act 2004.

Coordinated Community Response The Coordinated Community Response (CCR) was originally developed in Duluth, Minnesota, United States with the belief that the coordination of local services would significantly increase the safety of victims and children and hold perpetrators accountable (Wills et al., 2011). In the UK, in the early 1980s, the domestic violence forums largely represented this approach, yet by 2000 the CCR model looked much different and a more criminal justice focus became apparent. The three multi-agency initiatives that characterise the turn of the century, in England and Wales, can be identified as multi-agency risk assessment conferences (MARACs), independent domestic violence advisors (IDVAs) and Specialist Domestic Violence Courts (SDVCs). Domestic Violence: A National Report (Home Office, 2005b) set out a series of commitments to develop services to respond to domestic violence – these included the support of new measures including IDVAs and SDVCs. In 2008, Tackling Violent Crime highlighted domestic violence as a priority area with IDVAs and MARACs identified as core strategies in reducing domestic violence and improving the criminal justice response (NAO, 2009). This framework marks a shift in approach to domestic violence adopting a specific criminal justice focus and one which concentrates on serious violence and high risk victims (Coy and Kelly, 2011). The following section outlines these criminal justice orientated initiatives and then discusses the notion of ‘high risk’.

The Multi Agency Risk Assessment Conference (MARAC) MARACs were first piloted in Cardiff in 2003. On 29 March 2006, the Home Office announced its National Strategy for Domestic Violence and MARACs were a central element of this strategy. By 2009 there were over 200 local MARACs across England and Wales (Home Office, 2009). ‘The MARAC process is part of the MAPPA that were introduced in the South Wales area for the management of violent and sexual offenders arising from Section 67 of the Criminal Justice and Court Services Act 2000’ (Robinson, Downloaded by [University of Defence] at 01:45 24 May 2016 2004: 5). Despite the criminal justice focus, agencies that attend the MARACs extend beyond the criminal justice system. The inclusion of non-criminal justice agencies is important as it echoes historic radical feminist claims that a criminal justice response alone is not able to meet the needs of victims and further recognises the all-pervasive nature and effects of domestic violence (see Chapter 1). The intention of the MARAC is for the multi-agencies to share the information they variously hold on the case before them with the aim of developing an immediate safety plan which puts support in place to keep the victim (and her children) safe from immediate danger and lower the level of risk. The emphasis is on high 136 Responding to domestic violence risk and as such domestic violence cases deemed medium or low risk are not referred to a MARAC. Evaluations of the effectiveness of MARACs indicate success in improving the safety of high-risk victims and their children (Robinson, 2004; Robinson and Tregidga, 2007). Robinson and Tregidga’s (2007) research demonstrated that over four in ten victims reported no further violence one year after the MARAC. Robinson (2004) found MARACs to be significant in reducing repeat victimisation for high risk victims and goes on to suggests that MARACs are ‘invaluable’ in achieving this goal.

Whether MARACs were successful at improving victim safety was measured by the number of police domestic violence complaints post MARAC, the number of police call outs for domestic violence post MARAC and telephone interviews with victims. All three indicators revealed that the majority of victims (about 6 in 10) had not been re-victimized since the MARAC. (Robinson, 2004: 3)

Beyond reducing the level of risk and the incidents of repeat victimisation for victims, other benefits of MARACs include facilitating information sharing; improving communication and cooperation between participating agencies; risk assessment; advocacy; the translation of policy into practice; and greater accountability of perpetrators (Robinson and Tegidga, 2007). Research also demonstrates areas which challenge the effectiveness of the MARACs. Robinson (2004) identified resource and time limitations as barriers to effectiveness. Robinson and Tregidga (2007) found that although communication between agencies improved, that this information was not always passed onto the victim i.e. victims were not told about bail conditions or prison releases. Successive evaluations have identified the absence of key agencies at the MARAC (Robinson, 2004; Howarth et al., 2009b; Coy and Kelly, 2011). Coy and Kelly (2011) identified poor understandings of the gendered nature of domestic violence and an overreliance on Independent Domestic Violence Advisers (IDVAs) in terms of knowledge and follow-up actions. A further concern that some have levelled at MARACs is that they can take place without the victim’s consent. It has been pointed out by Westmarland (2011: 298) that this ‘disregard of victim-survivor consent and respect for their privacy rights’ (Coy and Kelly, 2011: 109) is at odds with ‘the empowerment model that feminists Downloaded by [University of Defence] at 01:45 24 May 2016 have argued for many years should be placed at the centre of any domestic violence interventions.’ A final critique of MARACs is their focus on high risk. While this focus is obviously a benefit for those high risk victims who are referred to MARACs, it does highlight that the ‘government’s core response was not to domestic violence per se, but only to high risk domestic violence victims’ (Westmarland, 2011: 299). Such a critique can also be levelled at the role of Independent Domestic Violence Advisers. Responding to domestic violence 137 Independent Domestic Violence Advisers (IDVAs) As we saw in Chapter 6 IDVAs were introduced to support people (victims) throughout the duration of their involvement with the criminal justice system:

IDVAs are specialist case workers who focus on working predominantly with high risk victims, those most at risk of homicide or serious harm. They work from the point of crisis on a short to medium term basis and have a well-defined role underpinned by an accredited training programme. They offer intensive short to medium term support. They also mobilise multiple resources on behalf of victims by coordinating the response of a wide range of agencies who might be involved with a case, including those working with perpetrators and children. Thus, they work in partnership with a range of statutory and voluntary agencies but are independent of any single agency. (Howarth et al., 2009a: 2)

IDVAs work with victims to provide a crisis response that aims to improve safety by increasing victims’ access to resources, including practical help and social support (Robinson, 2009). As with MARACs the focus is on high risk victims. The first major multi-site evaluation of IDVAs was conducted by Howarth et al. (2009a: 1) who researched IDVA support to ‘2,500 women over two years across seven sites in England and Wales, who were suffering from severe, high risk physical, emotional and sexual abuse as well as stalking and harassment’. The study found that the abuse stopped completely in two-thirds of cases where intensive support had been provided by an IDVA service. Intensive support was understood as six or more significant contacts and when multiple services were offered. It was not just the range of options offered, but the take up of multiple services that made a difference to victim safety.

This requires firm links between the IDVA service and partner agencies, facilitated in part by the Multi-Agency Risk Assessment Conferences (MARACs). For the first time, this gives domestic abuse specialist a formal role in coordinating the response of other agencies, putting the safety of the victim at the heart of their work. As such, IDVAs can be a catalyst to change both in the safety of the individual victim and the way that all agencies interact.

Downloaded by [University of Defence] at 01:45 24 May 2016 (Howarth et al., 2009a: 12)

While IDVAs can no doubt be a ‘catalyst to change’, as Howarth et al. (2009b) argue, some have raised concerns as to the duplication of service provision and the resource implications of funding IDVAs. Westmarland (2011: 298) suggests that:

it can be argued that they [IDVAs] simply duplicate existing voluntary sector services, meaning that IDVAs are receiving funding in place of long-standing 138 Responding to domestic violence women’s sector organisations that have arguably been doing the work of an IDVA for many years or even decades (since the 1970s) in some cases.

Arguably what differentiates the IDVA from other professionals in the women’s sector, who have historically supported domestic violence victims, is not the nature of the work, but more so the mandatory training course all IDVAs must undertake, the focus on ‘high’ risk and the defined role and title of an IDVA. The name ‘IDVA’ suggests ‘independence’ as part of this role and as such, ‘there is arguably an assumption made that they will be located within the voluntary and community specialist domestic violence sector’ (Westmarland, 2011: 299). However, research suggests that this is not always the case. IDVAs can work from a variety of locations and they may operate from a dedicated IDVA service or they may be based in a variety of different agencies such as the police or accident and emergency departments (Coy and Kelly, 2011). Robinson’s (2009: 5) evaluation of four IDVAs identified the location of IDVA services to be an important factor. She suggests that the ‘independence’ of IDVAs is ‘essential to effectively coordinate the community response, to provide institutional advocacy to their multi-agency partners, and to their ability to engage with and provide appropriate advice to victims’ (ibid.). Funding and the location of IDVA services were viewed as being key determinants in IDVA’s maintaining such independence. Robinson (2009: 34) recommended that ‘all IDVAs should be managed by independent domestic violence projects’ and that ‘ideally they should, at least partially, carry out their day-to-day work from these types of projects too’. Similarly, Coy and Kelly (2011) evaluated four London IDVA schemes. They found that all schemes demonstrated success in increasing victims safety and that repeat referrals and further incidents recorded by IDVAs were very low. They also highlighted some familiar multi-agency challenges and found evidence of ‘turf wars’ between some IDVA schemes and statutory agencies and evidence that some IDVA schemes were ‘intimidated and/or marginalised’ by some more powerful statutory agencies. Coy and Kelly (ibid.) suggest that the ability of IDVAs to deliver their service was constrained by ‘slow, inadequate or simply unforthcoming responses’ from other agencies in the Co-ordinated Community Response (CCR) i.e. housing departments, police and Children’s Departments. These are issues which could arguably be addressed in future practice.

Downloaded by [University of Defence] at 01:45 24 May 2016 Specialist Domestic Violence Courts Specialist Domestic Violence Courts aim to identify and assess domestic violence cases and provide additional support for victims in order to bring more offenders to justice (HMCS et al., 2008). The first Specialist Domestic Violence Court was set up in Leeds in 1999 and at the beginning of 2000 SDVCs – cluster courts or fast-track systems – for domestic violence cases were introduced. By November 2010 there were 141 SDVCs in England and Wales (Home Office, 2010a) and the government has recently indicated its wish to further develop this approach (Home Office, 2011a). Responding to domestic violence 139 SDVCs were developed in part to respond to the unique nature of domestic violence and the recognised difficulty and limits of the existing court process for victims. Hester (2006) identified high attrition rates throughout the criminal justice system. Further, the issue of victim retraction in cases of domestic violence is of particular relevance to the court process. Victims’ fear of further violence, shame, still wanting a relationship with the perpetrator and needing to make arrangements for children have all been identified as typical reasons why women retract their statements or withdraw from the prosecution process (Gill, 2004; Hester, 2006). This is responded to by ‘fast tracking’ domestic violence cases or ‘clustering’ them in a SDVC. A SDVC is typically a courtroom in a magistrates court which is given over to hearing domestic violence cases on a particular day. Court staff are specifically trained in domestic violence matters with a view to providing consistent decision making and appropriate sentencing following conviction (Westmarland, 2009). The benefits of SDVC include increased support for victims, fewer victim with- drawals, the fast tracking of cases, an increase in conviction rates, more guilty pleas and an improvement in information sharing and court support for victims (Cook et al., 2004).

Risk assessment models Since the 1990s and the turn of the century in particular there has been increasing interest in the notion of a risk society (Beck, 1992), of the changing nature of contemporary crime control (Garland, 2001) and of criminology and risk (O’Malley, 2006). The growing importance and visibility of risk orientated thinking, policy and practice has been seen across the whole of the criminal justice system (Newburn, 2007) and more recently in the area of domestic violence. The focus on domestic violence and crime prevention, the introduction of MARACs and IDVAs, significant changes to policing practice and policy (ACPO, 2008a) and calls for the introduction of a domestic violence offender notification system can be interpreted as evidence of this. Recent research has addressed specifically ‘risk’ and domestic violence with the aim of identifying ‘those victims who are most at risk of experiencing domestic violence in the future’ (Robinson, 2006: 764). Feminist inspired research, findings from domestic homicide reviews and victims’ views inform understandings of risk and domestic violence. It is well documented that women are at Downloaded by [University of Defence] at 01:45 24 May 2016 greatest risk of homicide after they separate from a violent partner (Wilson and Daly, 1992). Humphreys and Thirara (2003) identified child contact as a situation in which both women who had separated and their children were vulnerable to further abuse. Robinson and Howarth (2012: 23) ‘found that perpetrators general criminal history, victims fear that the perpetrator would harm or kill the children, prior nonlethal strangulation or choking, sexual abuse, relationship separation and victim’s isolation were all associated with increased odds of re-victimization’. Research importantly indicates that victim’s self-assessment of risk is a strong predictive factor (Robinson, 2006). Walklate and Mythen (2011) have warned of 140 Responding to domestic violence the increased danger women can face while proceeding with the criminal justice process if the women’s perceptions of risk, and how it should be best managed, are not taken into consideration. Robinson and Howarth (2012: 2) suggest that ‘over the last decade, there has been concerted effort within the United Kingdom to integrate the identification, assessment and management of risk into the mainstream response to domestic violence’. One of the significant recent changes to risk assessment in England and Wales is the development and use of the Domestic Abuse, Stalking and Harassment and Honour-Based Violence Risk Identification, Assessment and Management Model (DASH). In 2009, the Association of Chief Police Officers (ACPO) accredited and adopted the DASH model to identify and assess risk of domestic violence (Home Office, 2009). This risk assessment model was developed as a result of findings from Domestic Homicide and Serious Case Reviews which demonstrated insufficient risk identification and information sharing between agencies. In England and Wales, the police use the ACPO DASH model and partner agencies use the CAADA DASH. Both risk assessments are aligned, but the police have an extra set of questions consistent with their role of law enforcement. Thus the DASH risk assessment is not just a model that is adopted by the police, nor solely criminal justice agencies, but it is a model which is used by many agencies i.e. schools, health, probation, social services, housing, specialist community groups and IDVA schemes, to name but a few. The DASH risk assessment involves a series of questions that the practitioner asks of the victim they are seeking to support. These questions – the risk assessment checklist – are in part, grounded in pro-feminist research about the nature of domestic violence and they are readily available on the CAADA website (see www.caada.org.uk). Underpinning the checklist questions are three underlying guides that practitioners must adhere to when considering referring the case to a MARAC. Robinson and Howarth have highlighted the challenges faced by IDVAs conducting domestic violence risk assessments using the DASH risk assessment tool:

There are many points at which inaccuracy may be imbued into the risk assessment process. Practitioners must rely on imperfect actuarial data when forming their decisions, they prefer to translate numerical scores into descrip- tive terms, identifying a particular subset of items to be the most salient Downloaded by [University of Defence] at 01:45 24 May 2016 predictors of risk, all the while feeling an understandable pressure to err on the side of caution while also maintaining accuracy. (Robinson and Howarth, 2012: 6–7)

In examining how IDVAs conducted risk assessments, Robinson and Howarth (2012) found that IDVAs used their discretion and preferred to err on the side of caution rather than accept low actuarial risk scores at face value. IDVAs paid careful attention to victims’ self-appraisal of risk; recognised that the presence Responding to domestic violence 141

Box 7.1 CAADA-DASH Risk Identification Checklist for MARAC Agencies Recommended Referral Criteria to MARAC 1 Professional judgement: if a professional has serious concerns about a victim’s situation, they should refer the case to MARAC. There will be occasions where the particular context of a case gives rise to serious concerns even if the victim has been unable to disclose the information that might highlight their risk more clearly. This could reflect extreme levels of fear, cultural barriers to disclosure, immigration issues or language barriers particularly in cases of ‘honour’-based violence. This judgement would be based on the professional’s experience and/ or the victim’s perception of their risk even if they do not meet criteria 2 and/or 3 below. 2 ‘Visible High Risk’: the number of ‘ticks’ on this checklist. If you have ticked 14 or more ‘yes’ boxes the case would normally meet the MARAC referral criteria. 3 Potential Escalation: the number of police callouts to the victim as a result of domestic violence in the past 12 months. This criterion can be used to identify cases where there is not a positive identification of a majority of the risk factors on the list, but where abuse appears to be escalating and where it is appropriate to assess the situation more fully by sharing information at MARAC. It is common practice to start with 3 or more police callouts in a 12 month period but this will need to be reviewed depending on your local volume and your level of police reporting. (www.caada.org.uk; CAADA, 2012: 1)

of children was influential in determining level of risk; and identified injuries, use of weapons and psychological abuse as linked to initial risk judgements of further abuse. Despite identifying these areas where there was ‘overlap between the subset Downloaded by [University of Defence] at 01:45 24 May 2016 of factors informing risk judgements and those associated with re-abuse’ (ibid.: 2012: 23), Robinson and Howarth (2012) also highlighted significant differences. Notably, the research identified that the only factor to decrease the odds of a high- risk assessment was the presence of a recent or impending separation. This is somewhat surprising, as it is at odds with the well-rehearsed experience of victims and research and homicide reviews which demonstrate that separation occurring up to a year previously is a key predictor of further abuse and homicide (Wilson and Daly, 1992). Robinson and Howarth (2012: 20) further identified that perpetrators’ criminogenic characteristics (e.g. criminal records, substance misuse) 142 Responding to domestic violence were not linked to risk judgements. They note that ‘there is much evidence that these factors correlate with an increased risk of re-abuse and harm and are important to consider in assessing risk’. The research demonstrates that ‘risk assessment in domestic violence is not an exact science and practitioners engaging in this work will need support’ (Robinson and Howarth, 2012: 23).

The 2010s In the 2010s, the governments have continued to affirm their commitment to ending violence against women. In 2013 the Coalition government published A Call to End Violence against Women and Girls: Action Plan 2013. One of the plan’s ‘guiding principles’ is to work in partnership to obtain the best outcomes for victims and their families. In particular, they aim to achieve the following outcomes by 2015:

• Better support available for victims and their families with statutory, voluntary and community sectors working together to share information and agree practical action. • Improved the life chances of victims of violence against women and girls overseas, with this issue an international priority for the UK. (HM Government, 2013: 28)

Police and Crime Commissioners One of the most significant changes to policing of modern times came in 2012 with the introduction of Police and Crime Commissioners. Having elected, political representatives with the ability to hire and fire Chief Constables constitutes a major shift in policing governance in England and Wales. The End Violence against Women Coalition, Rape Crisis (England and Wales) and Women’s Resource Centre ran a campaign to support local domestic violence and other ‘violence against women and girls’ (VAWG) organisations to ask all candidates to commit to four action points:

1 Making VAWG a top priority by setting a ‘strategic objective’ on this in their Plan. 2 Funding women’s services in the community including Rape Crisis Centres, specialist domestic violence services and support for ethnic minority women. Downloaded by [University of Defence] at 01:45 24 May 2016 3 Consulting women’s groups and public bodies locally to develop a VAWG strategy and then appoint a senior person to lead this work. 4 Running public campaigns to challenge myths and stereotypes about sexual and domestic violence. (www.endviolenceagainstwomen.org.uk)

However, the extent to which the candidates promised to prioritise violence against women and girls, and the extent to which they will once elected, will clearly differ from police force to police force. While the changes to policing were fairly well discussed Responding to domestic violence 143 and publicised, the changes the introduction of Police and Crime Commissioners will have on the funding of victims services in local areas may be less well known. From 2013 the Police and Crime Commissioners have control over local community safety funding, including services for victims of sexual, domestic and other violence.

The introduction of Domestic Violence Homicide Reviews In April 2011 Domestic Violence Homicide Reviews modelled on the children’s Serious Case Reviews were made mandatory under section 9 of the 2004 Domestic Violence, Crime and Victims Act. Up until October 2012 the Home Office were notified of 132 decisions to undertake a Domestic Violence Homicide Review. A Domestic Violence Homicide Review is defined within section 9 (3) of the Act as:

a review of the circumstances in which the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by – (a) a person to whom he was related or with whom he was or had been in an intimate personal relationship, or (b) a member of the same household as himself, held with a view to identifying the lessons to be learnt from the death.

Any professional or agency is able to refer a homicide to their community safety partnership if they believe there are important lessons that can be learned for multi- agency working. For example, a case may be referred for review if there was evidence that the victim was at risk but an agency took no action or failed to share this information with other relevant services. According to section 3.3 of the Statutory Guidance document, the purpose of a Domestic Violence Homicide Review is to:

• Establish what lessons are to be learned from the domestic homicide regarding the way in which local professionals and organisations work individually and together to safeguard victims; • Identify clearly what those lessons are both within and between agencies, how and within what timescales they will be acted on, and what is expected to change as a result; • Apply these lessons to service responses including changes to policies and procedures as appropriate; and • Prevent domestic violence homicide and improve service responses for all Downloaded by [University of Defence] at 01:45 24 May 2016 domestic violence victims and their children through improved intra and inter-agency working. (Home Office, 2011b: 6)

The impact of the global economic crisis and resultant austerity cuts As we noted in Chapter 3, the 2010s have seen huge cuts to domestic violence coordination and services as part of the government’s austerity measures. 144 Responding to domestic violence Although the scope of this is not yet completely known, what is clear is that many areas are reducing funding and merging domestic violence coordination posts into wider community safety positions. Initial research by Walby and Towers (2012) found that substantial reductions in funding from national budgets are leading to cuts in local domestic violence services, and that these cuts are expected to lead to an increase in domestic violence incidence. They also report that the effect of the cuts is uneven across the country. Analysing data obtained using Freedom of Information Act requests by the False Economy project, Walby and Towers (2012) found that 31 per cent of local authority funding for domestic violence and sexual abuse was cut between 2010/11 to 2011/12 (a reduction from £7.8 million to £5.4 million). In terms of domestic violence perpetrators, they report data from Respect – that between 2010 and 2011 78 per cent of services reduced the number of clients they were able to assist due to budget cuts. Walby and Towers (2012) also report data collected by CAADA (Coordinated Action against Domestic Abuse) that shows the number of IDVAs have reduced – in 2011 a survey of 8 major IDVA providers showed that 2 faced cuts of 100 per cent, 3 faced cuts of 50 per cent, 3 of 40 per cent and 2 of 25 per cent. These funding cuts mean not only that fewer people will receive support services, but also suggest that the ability to do effective multi-agency working will be reduced, since there will be far fewer professionals to provide the services and attend important meetings such as MARACs and MAPPAs.

What should effective partnership working look like today? Standing Together Against Domestic Violence (often summarised just to ‘Standing Together’) is a domestic violence partnership based in two London boroughs – Hammersmith and Fulham. They were one of the first to run a Specialist Domestic Violence Court and have, since the late 1990s, been pioneers in the formation and development of domestic violence partnerships. They work on the basis that there is a fundamental necessity for agencies to work together – to stand together against domestic violence – since it is impossible for any one agency or even one sector (e.g. the criminal justice system) to be effective on their own. They explain:

The criminal justice system is just one aspect of a fully functioning coordinated approach, particularly when only a small number of victims report to the police and only a percentage of these cases will carry through into court. Downloaded by [University of Defence] at 01:45 24 May 2016 Health, Children’s Services, schools, faith groups, family, friends, work colleagues, and the plethora of voluntary agencies which support individuals and families, all have an important role to play in the response to domestic violence. No one agency can respond effectively on its own. Our success depends on the relationships and partnerships we build. (Standing Together Against Domestic Violence, 2011)

In July 2011 Standing Together conducted a review and produced guidance entitled In Search of Excellence – A Guide to Effective Partnerships (Wills Responding to domestic violence 145 et al., 2011). According to their review, the best partnerships have the following nine components:

1 An understanding of domestic violence – making sure senior people who are making decisions understand the dynamics of domestic violence. 2 Domestic violence as a historic concern and priority – a broad approach and a commitment that goes well beyond ‘we need a refuge’. 3 An ethos of gender equality – a longstanding commitment to feminism and equality. 4 Cross-party political support – seeing domestic violence as non-party political and being willing to build cross-party coalitions. 5 History of multi-agency working – a culture of co-working and not just using the term ‘partnership’ in a meaningless way. 6 Developed partnership structures – looking across the operational and strategic spectrum. 7 Leadership – effective and influential leaders backed up by corporate leadership. 8 Funding – a budget that can fund initiatives and services. 9 Communication – an understanding of everyone’s roles, and boundaries as well as making time to talk. (Wills et al., 2011: 9–11)

Summary This chapter has shown the journey that multi-agency working in domestic violence has come on since the 1970s to date. It took a while for domestic violence multi-agency working to become established in England and Wales and partnership working was not widespread until the mid-1990s – in the style of forums. Much of the inspiration for domestic violence forums came from the pioneering work in Duluth, Minnesota, which has become internationally renowned as the ‘Duluth Model’. With greater state interventions in England and Wales in the late 1990s/into the 2000s came initiatives such as Independent Domestic Violence Advisors (IDVAs), MAPPAs and MARACs. As Westmarland (2011) notes, these initiatives marked a shift away from an emphasis on repeat victimisation and onto seriousness and risk. These criminal justice focused interventions continued into the 2010s, for example making domestic violence homicide reviews mandatory. Downloaded by [University of Defence] at 01:45 24 May 2016 The situation at present is that the future of cuts to domestic violence services and coordinators is unknown, as is the full impact of the introduction of Police and Crime Commissioners. Standing Together against Domestic Violence – the partnership in the London boroughs of Hammersmith and Fulham – continues to be one of the areas taking the most innovative approaches to multi-agency working and it is hoped its guide to excellence can be usefully followed by other areas in the future. Conclusions

Throughout this book we have documented the improvements made to the UK criminal justice system over the last 40 years to make policing, prosecution and the sentencing of men who commit offences of domestic violence more effective. In writing about these developments we have constantly reminded ourselves that these improvements to the criminal justice system – while welcome in themselves – are not necessarily the only way forward. Male attitudes toward women and concepts of patriarchy may have become more enlightened over these same years but they still persist both within and outside the criminal justice system. In July 2010 the whole country was transfixed by the police hunt in the north- east of England for Raoul Moat who had seriously injured his former partner, killed her new partner and seriously injured a police officer. Moat had been recently released from prison for offences of violence and the news presentation of the story was one of a man-hunt for a dangerous person. Moat was even cele- brated and supported by people on social networking sites as ‘one man against the system’ before he eventually took his own life. No one portrayed it as an example of domestic violence. The Moat story has been usefully examined by David Gadd who points out that just six days after Moat’s death the Home Secretary Theresa May addressed the Women’s Aid Federation and never mentioned the Moat case at all. Prime Minister David Cameron referred to him only as that ‘callous murderer’. No one tried to explain why so many people appeared to identify with Moat in spite of his violence (Gadd, 2012). Gadd cites Theresa May as simply telling the Women’s Aid Federation that more ‘abusers have been brought to justice’ and questions if criminal justice is Downloaded by [University of Defence] at 01:45 24 May 2016 now all that domestic violence is about. He points out that the Coalition’s consultation paper Call to End Violence against Women and Girls makes no mention of men and male attitudes. He concludes that ‘there is a case for redirecting spending on tackling domestic abuse away from the criminal justice system and into alternative strategies’ (ibid). In a rare parliamentary debate on domestic violence on 14 February 2013, Fiona McTaggart Labour MP for Slough brought the focus onto schools and the subject of sex and relationships education. She recognised that: ‘We have better prosecution rates, IDVAs – independent domestic violence advisers – and refuges Conclusions 147 … but the shortfall in our response to such violence is caused by a lack of education to prevent it’ (Hansard HC Debates 14 February 2013 col.1082). During the three-hour debate the subject was examined from all angles. The point was made that young boys in the UK seem to tolerate violence, and yet schools were being mandated to introduce teaching on monetary and financial matters but not on sexual and relationship matters. Another MP told the story of an 11-year-old London girl who failed to report her rape because a storyline in the Eastenders TV soap opera had made her so worried about the court process that she thought she would not be supported. But even at this level of debate one male – Philip Davies, a Conservative MP from Shipley in West Yorkshire – completely misjudging the cross-party mood of the afternoon, reminded us of just how far there is to go. Davies made an equivalence argument that women could also be violent and that in general terms men were treated more harshly than women in the criminal justice system (Hansard HC Debates 14 February 2013 col.1093). The parliamentary debate on Thursday 14 February 2013 was timed to coincide with an international campaign against violence towards women. The campaign took the title ‘One Billion Rising’ with the aim of having that number of women (and men) in 205 different countries walk out of their jobs, schools, offices and homes and strike, rise and dance. One of the organisers was the American play- wright and activist Eve Ensler who explained that:

We knew we had to escalate our efforts to break through the patriarchal wall of oppression and denial, to transform the mind-set that has normalised this violence, to bring women survivors into their bodies, their strength, their determination, their energy and power and to dance up the will of the world to finally make violence against women unacceptable. (Ensler, 2013)

International prompts for this day of action had come from high profile crimes during the previous year that included the shooting of 14-year-old Malala Yousafzai for demanding education for girls in Afghanistan, and the gang rape and murder of Jyoti Singh in Delhi; on 14 February itself news came in from South Africa of a woman found dead from gunshot wounds at the home of disabled athlete Oscar Pistorius. Meanwhile at home plans are afoot to change the very nature of criminal jus- Downloaded by [University of Defence] at 01:45 24 May 2016 tice delivery. The traditional provision of public services by the state – as in our chapters four to six in the form of policing, probation, courts and prisons – is seen as giving way to a provision that comes from not just the public sector but also the private sector and the voluntary sector; the voluntary sector now being referred to as the ‘third sector’. In short a ‘mixed economy’ of provision. The private sector already provides a number of services directly to the criminal justice system. The police are outsourcing their ‘back room’ services and increasingly civilianising their staff. We have some prisons run by private companies and private companies provide all the prisoner escort and custodial services 148 Conclusions for transporting people to and from prisons and courts and for inter-prison trans- fers. Since February 2012 translating and interpreting services for the courts have been outsourced to a private company. All the electronic tagging of offenders in the community is undertaken by private companies. Volunteering in the criminal justice system has a long history whether in the probation service, the prison service or elsewhere; the original Victorian ‘probation officers’ were volunteers acting as ‘missionaries to the courts’ working with offenders and offering a welfare service. The tradition has continued with ‘special constables’ for the police, prison visitors, probation volunteers, Neighbourhood Watch schemes and the 6,000 or so volunteers who have joined ‘Victim Support’. We have already noted how the first women’s refuges and other initiatives in domestic violence came from the women’s movement of the 1970s and the key role the women’s specialist voluntary sector continues to play 40 years on. The difference in future will be that the private and voluntary sector would be seen as being able to provide more services alongside the traditional services. This is seen as a way to rejuvenate the ‘jaded’ public sector services and not least in terms of improving the high re-offending rates when offenders leave prison. Both sectors might bid for work that would in future be subject to a new ‘pay- ments by results’ regime. Critics point out that volunteers might be being asked to complement and compensate for the lack of professional staff needed to do this work. This in turn could lead to difficulties in working alongside each other:

The Coalition government saw volunteers as being part of what it called the ‘Big Society’; violence towards women and children was cited as an example of where volunteers might make a difference:

The coalition government’s ambition is to ensure that tackling violence against women and girls is treated as a priority at every level. Greater decen- Downloaded by [University of Defence] at 01:45 24 May 2016 tralisation and our vision for Big Society will give local people a stronger voice in setting local priorities, and give local areas the means through which to understand what those priorities are. (HMG, 2010: 7)

In its later consultation paper Transforming Rehabilitation the government stated its commitment to ensure: Conclusions 149 The majority of rehabilitative and punitive services in the community will be opened up to a diverse market of providers. We currently spend around £1 billion on delivering these services. Through competition and payment by results, we will introduce more efficient and effective services, specifically targeting a significant reduction in reoffending rates. This will deliver a tough but intelligent justice system, aligning proper punishments with an integrated programme of support to help offenders reform. (MoJ, 2013: 13)

How this is going to affect services to victims of domestic violence remains to be seen. Questions of accountability to the courts or communication between far more agencies than before are going to be difficult to pin down but the model for ‘payment by results’ (DWP, 2012) for private companies to get help to troubled families assisting them getting back into work has already been launched. Downloaded by [University of Defence] at 01:45 24 May 2016 Bibliography

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ACPO (Association of Chief Police Brixton riots (1981) 132 Officers) 12, 17, 58–9, 65, 68, 72, Broken Rainbow 26 73, 79, 140; Tackling Perpetrators of Brown, Michael 84 Violence against Women and Girls Buller, Sir Francis 44 report (2009) 58–9, 77, 84, 91 activism 26 CAADA (Co-ordinated Action Against Ahluwalia, Kiranjit 116 Domestic Abuse) 102, 112, 144 Ahmed, Alesha 9 CAADA DASH 140, 141 Ahmed, Shafilea 8–9 Call to End Violence against Women and Allen, J. 2, 11, 18 Girls: Action Plan (2013) 61, 142, 146 Anderson, K.L. 34, 35–6, 40–1, 42 Callan, S. 63 Appeals Court 119 cautions see police cautions Area Child Protection Committees 128 CBA (Criminal Bar Association) 101–2 Area Review Committees 128 Chapman, Jessica 134 arranged marriages 6–7 charging: and CPS 89–90; and police Association of Chief Police Officers see 76–8, 90 ACPO child abuse 5, 127–8 Auld Report (2001) 87–8, 89, 104 child protection 127–8 austerity cuts 60, 143–4, 145 Child and Women Abuse Studies Unit (CWASU) 10 bad character, evidence of 113 Children Act (1989) 120, 128 bail 75–6, 106–8 children/young people 23; witnessing of Bail Act (1976) 106, 107, 108 domestic violence 120 Bail Information Schemes 107–8 Children’s Society 23 Barran, Diana 102 Citizens Charter 51 Barron, J. 3 Clarke, Kenneth 96 Barter, C. 13 Coalition government 60–2 ‘battered wife’ 2 Cobb, Frances Power 1–2

Downloaded by [University of Defence] at 01:45 24 May 2016 battered woman syndrome 116–17 Code for Crown Prosecutors 91, 92 Big Society 61, 148 Code of Practice for Victims of Crime 56 black feminism 37–8 coercive behaviour 14, 21 black minority ethnic (BME) women 37–8 coercive control 10, 17, 29, 31, 36, 38–43; Boateng, Paul 133 calls for criminalisation of 39; concept Breaking the Cycle (Green Paper) (2010) of ‘unreality’ and 40; distinction 61 between domestic violence and 39; British Council 10 theorising gender and 40–3 British Crime Survey 3, 5, 19, 23, 102; Collins, Justin Lee 21, 32 critiques of 23–4 Colwell, Maria 127 British Medical Association 5 common couple violence 36 170 Index Community Domestic Violence and Glidewell Report 87, 96; overall Programme (CDVP) 123 performance 101–2; and police 86, Community Involvement Panels 89 87, 89; and position of victims 95; and community orders 122–5 prosecuting 91–2; and Public Interest community policing 131–3 Test 91–2; and remands in custody 108; Community Safety Partnerships 132 and retraction of domestic violence conditional cautions 79–80, 90–1 allegations 92–5; structure and role of conditional police bail 75 today 88–9; ‘Violence against Women Conflict Tactic Scale (CTS) 33 Strategy’ 87; and Witness Care Service Conflict Tactic Scale I (CTS1) 33 111 Conflict Tactic Scale II (CTS2) 33 CPS Direct scheme 77, 89 conflict theory 33 crime: defining domestic violence as controlling behaviour 4, 14, 21 17–19, 46–7; survivors of domestic Convention on the Eradication of All violence becoming involved in 38 Forms of Discrimination against Crime and Disorder Act: (1980) 57; (1998) Women (CEDAW) 9 76, 132 Coordinated Action against Domestic Crime and Disorder Reduction Abuse see CAADA Partnerships 132–3 Coordinated Community Response (CCR) Crime, Justice and Protecting the Public 135 (White Paper) (1990) 50 Coronation Street 35 Crime Reduction Project (CRP) 54 Coroners and Justice Act (2009) 100, 116 Crime and Security Act (2010) 59, 78, 82 Correctional Services Accreditation Panel Crime Survey for England and Wales see 123 British Crime Survey Corston Report 58 Criminal Bar Association (CBA) 101–2 couple fights 36 Criminal Justice Act (1988) 73, 93–4; court witness supporter 99 (1991) 117; (2003) 79, 89, 90, 93, 113, courts 103–5; and battered woman 121 syndrome 116–17; criminal court Criminal Justice and Courts Services Act hearing 108–10; Crown 103–4, 108–9; (2000) 134, 135 defences 114–16; expert witness Criminal Justice and Immigration Act testimony 117; Integrated Domestic (2008) 81 Violence Courts 104–5; and language Criminal Justice and Public Order Act interpreters 112; and Legal Aid 105–6; (1994) 51, 52, 75, 76 magistrates courts 103; remand deci- Criminal Procedure Rules 109, 109–10 sions 106–8; and reporting restrictions Cross Government Action Plan on Sexual 117; revealing previous convictions Violence and Abuse 58 during a hearing 113–14; and sentenc- Crown courts 103–4, 108–9 ing see sentencing; Specialist Domestic Crown Prosecution Service see CPS Violence Courts (SDVC) 28, 57, 58, curfews 124–5 60, 104, 135, 138–9; support avail- custodial sentences 125–6 able for victim/witnesses of domestic custody: leaving 126; remands in 108; violence 110–12; and Victim Personal thresholds 121–6 Downloaded by [University of Defence] at 01:45 24 May 2016 Statements 118 custody officer 72, 75–6, 90 Courts Act (1971) 103 Custody Time Limits 108 Coy, M. 138 cycle of violence 26 CPS (Crown Prosecution Service) 12, 52, 73, 77, 86–102; assisting of vulnerable DASH 140, 141 and intimidated witnesses 97–101; Davies, Philip 147 brief history 86–8; and charging 89–90; Davis, Ian 100 Community Involvement Panels 89; defences, trial 114–16 and conditional cautions 90–1; creation defensive violence 32 of 86; criticism of 87; and discontinu- defining domestic violence 11–19, ance 96–7; and Evidential Test 91, 92; Index 171 23, 46–7, 105–6; in (2011) 62; and Domestic Violence Protection Order Coalition government (2012) 62; as a (DVPO) 59, 60, 78, 82–3 crime 17–19, 46–7; and Home office Domestic Violence and Repeat 13–15, 17, 21; incident approach Victimisation Project (Leeds) 83 12–13, 16, 23; and Ministry of Justice Domestic Violence Units 50, 66 15–16, 17; and under 18 year olds Domestic Abuse (Scotland) Act (2011) 13; widening of definition 106; and 17–18 Women’s Aid Federation 16–17 DPP 89 denial 34 Duluth Domestic Abuse Intervention Department of Health 131 Project (DAIP) 129, 130 detention 72–3 Duluth Model 129, 129–30, 145 Diamond, A. 133 Duluth Wheel 10, 31–2, 39, 40 disabled women: experience of domestic violence 20 Edwards, Ralston 97 discontinuance: and CPS 96–7 Edwards, S. 70 Dobash, R.E. 32, 33 electronic tagging 107, 124–5, 126, 148 Dobash, R.P. 32, 33 emotional abuse 31–2 Dodd, T. 12 Emsley, C. 44–5 domestic abuse 2, 5 End Violence against Women Coalition Domestic Homicide Reviews 55, 55–6, 142 143–4 ethnic minorities 24 Domestic Violence: Break the Chain European Convention on Human Rights Multi-Agency Guidance for Addressing 54, 68, 105, 106 Domestic Violence 133 European Council 10 Domestic Violence: A National Report 135 European Court of Human Rights 54 domestic violence: categories of 36–7; expert witnesses 117 causes see explaining domestic explaining domestic violence 25–43; and violence; criminalisation of 28, 44; categories of domestic violence 36–7; defining see defining domestic vio- and coercive control 38–43; Duluth lence; extent and prevalence of 3, 22–4; Wheel 31–2; gender asymmetry 35–6; gendered nature of 4, 16, 19–20, 25, gender entrapment 38; gender symme- 26–7; limitations in use of the name try 32–5; intersectional approach 37–8; of 3–4; naming 1–11; patterns of 22; and patriarchy 26–7, 29–31, 35; radical politics of recognition of 10–11; repeat feminist approach 25, 26–9, 30, 31, 32, nature of 22; term of 3–4; underreport- 42, 43 ing of 22 Domestic Violence Coordinator (DVC) Family Law Act (1996) 48, 52, 55, 80, 81, 101 131 Domestic Violence, Crime and Victims family violence approach 5–6, 26, 32, Act (2004) 18, 19, 52, 55, 56–7, 71, 81, 33–4, 47 106, 126 Farmer, E. 63 Domestic Violence Disclosure Scheme Fawcett Society’s Commission on Women 84–5

Downloaded by [University of Defence] at 01:45 24 May 2016 and the Criminal Justice System 38 Domestic Violence Enforcement female offending 32, 33 Campaigns 83–4 femicide 8 Domestic Violence Intervention Project 26 feminists/feminism 47; black 37–8; contri- Domestic Violence and Magistrates Courts bution to law reform by activism of 51; Act (1978) 48, 80 radical see radical feminism Domestic Violence and Matrimonial Ferraro, K.J. 36 Proceedings Act (1976) 48, 80 fines: and sentencing 121–2 Domestic Violence Matters project 83 Forced Marriage Unit 6 Domestic Violence Protection Notice forced marriages 6–7, 21 (DVPN) 59, 60, 77–8, 79 172 Index Gadd, David 19, 34, 146 Humphreys, C. 3, 18–19, 139 Gateway Notices 109 Hunnicutt, G. 29, 30–1 gay men 20 Huntley, Ian 134 gender 3, 10; and coercive control 40–3; and domestic violence 4, 16, 19–20, 25, IDVAs (Independent Domestic Violence 26–7; performativity of 41; as structure Advisors) 28, 57, 111–12, 135, 136, 42 137–8, 140; conducting of risk assess- gender asymmetry 32, 35–6 ments 140–1; reduction of 144 gender entrapment 38 imprisonment 125–6 gender identity 41 incident approach 12–13, 16, 23 gender inequality 42 Independent Domestic Violence Advisors gender violence 9–10 see IDVAs gendered interactions 41 Independent Police Complaints Gill, A. 37, 38, 133 Commission see IPCC Glasman, Claire 51 intimate terrorism 36 Glidewell Report (1998) 87, 96 Integrated Domestic Abuse Programme global economic crisis: impact of 143–4 (IDAP) 123 go-orders 58, 59, 77 Integrated Domestic Violence Courts Grace, S. 18 104–5 Graeff, Roger 49 Integrated Safety Services (ISS) 34 Gray, J. 64 interagency forums 130–1 Groves, N. 19 International Day for the Elimination of guilty plea:, reduced sentences for 121 Violence Against Women 23 International Tribunal on Crimes Against Hague, G. 128–9, 131 Women (Belgium) (1976) 9 Hale, Sir Matthew 51 interpreters see language interpreters 112 harassment 17–18, 31, 32, 53, 81, 137 intersectional approach 29, 37–8 Harman, Harriet 115 intimate partner violence (IPV) 5 Healthy Relationships Programme 126 investigative interview 72–3 Hearn, J. 32, 43 IPCC (Independent Police Complaints Hester, M. 4, 125 Commission) 8, 68 Home Office 5, 54, 65, 130–1; Circular 19/2000 18, 54; Circular 60/1990 Jackson, L. 64 18, 28, 50–1; Circular 69/1986 129; Johnson, M.P. 36 circulars 54, 65; definition of domestic justice: access to 105–6 violence 13–15, 17, 21; Together We Justice campaign group 124–5 Can End Violence against Women and ’justice gap’ 28 Girls 58 Justice for Women 26, 30, 32, 63, 114 Homelessness Act (2002) 48 homicide 4, 55–6, 114–15, 139, 143–4 Kandiyoti, D. 29 Homicide Act (1957) 114, 116 Keith, Lord 51 honour based violence (HBV) 7–9, 11 Kelly, L. 9, 10, 11, 26, 28, 30, 138; House of Commons Home Affairs Downloaded by [University of Defence] at 01:45 24 May 2016 ‘Nothing Really Happened’ 2, 9 Committee 45, 87, 115, 121–2, 123; Sixth Report on Domestic Violence (2008) 58 language interpreters 112 Housing Act (1996) 48 Law Commission 115 Housing (Homeless Persons) Act (1978) law and policy 44–63; 1970s 46–9; (1979- 48 1997) 49–53; (1997-2010) 53–60; 2010 Howarth, E. 137, 139, 140, 141 onwards 60–3;contribution of feminist Hoyle, C. 18, 73 activism to reform 51; history 44–6; list Hucklesby, A. 107 of criminal laws involved in domestic Human Rights Act (1998) 54, 68 violence 46; and radical feminism 63; see also individual Acts Index 173 LCSB (Local Child Safeguarding Board) and Duluth Model 129–30, 145; and 134 governmental policies 133–4; and learning theories 26 Independent Domestic Violence Lees, S. 3 Advisers (IDVAs) 137–8; interagency Legal Aid 15, 62, 105–6 forums 130–1; mapping study 131; and Legal Aid, Sentencing and Punishment of Standing Together against Domestic Offenders Act (2012) 106, 108, 124 Violence 144–5; and Women’s Aid Legal Services Commission 105 Federation 128–30 lesbians 20, 30 Murder, Manslaughter and Infanticide Lewis, R. 29 (White Paper) (2008) 115 LGBT communities 20 Musgrove, A. 19 liberal feminist approach 42 mutual control 36 Living without Fear 53–4, 133 Mythen, G. 139–40 Local Child Safeguarding Board (LCSB) 134 NASH (National Anti-stalking and Local Child Safeguarding Committees 128 Harassment Campaign) 53 National Association of Victim Support McCarthy, John 40 Schemes (NAVSS) 110 McGrail, Joseph 4 National Police Database 58 Macpherson Report (1999) 96 National Register of Public Service McTaggart, Fiona 146–7 Interpreters 112 Magistrates Court Act (1971) 103 Newman, Sir Kenneth 65 magistrates courts 103 newspapers: reporting restrictions and Mahmod, Banaz 8 court cases 117 Malos, E. 129 No Witness No Justice project 111 MARAC (Multi-Agency Risk Assessment non-molestation order 80–1, 82 Conference) 28, 57, 58, 83, 123, 135–6 Northern Ireland Legal Services marital rape 20, 27, 51 Commission 105 Marriage Act (1949) 7 NSPCC 13 Matrimonial Homes Act (1983) 81 May, Theresa 60, 146 occupation order 81 Mayor of London 59 offence seriousness: and sentencing men: as victims of domestic abuse 3, 19, 119–20 23 Offences Against the Person Act (1861) 17 Metropolitan Police 50, 64 Offender Behaviour Programme 123, 126 minimisation 34 One Billion Rising campaign 147 Ministry of Justice 73, 99; definition of domestic violence 15–16, 17; and Legal ‘paedophile panic’ 52–3 Aid budget 105 parliamentary debate on domestic violence Moat, Raoul 126, 146 (2013) 146–7 mobile phones 4 partner assault 36 Moore, Brian 58–9, 77, 91 patriarchy 26–7, 35, 47; critique of concept Multi Agency Public Protection Downloaded by [University of Defence] at 01:45 24 May 2016 of 29–31 Arrangements (MAPPA) 134–5 payment by results philosophy 61, 124 Multi Agency Risk Assessment Paymer, M. 129–30 Conference see MARAC Peace at Home (leaflet) 53 multi-agency working 27, 127–45; 1970s Pemberton, Julia 69 127–8; 1980s 128–30; 1990s 130–3; Pence, E. 129–30 2010s 142–5; and child abuse and child personal mitigation: and sentencing 120 protection 127–8; and community Philips Commission 86 policing 131–3; components of best Phillips, Lord 115–16 partnerships 145; and Coordinated physical violence 20 Community Response (CCR) 135; Pistorius, Oscar 147 174 Index Pizzey, Erin: Scream Quietly or the Order 59, 60, 78, 82–3; non-moles- Neighbours Will Hear 47 tation order 80–1; occupation order Plotnikoff, K. 18 81; restraining orders 55, 81; violent police bail 75–6 offender orders (VOO) 81–2 police cautions 78–80, 91; conditional provocation, defence of 114–16 79–80, 90—1; simple 78–9 psychoanalytical approach: and gender Police and Crime Commissioners 142–3 identity 41 Police and Criminal Evidence Act (1984) psychological violence 17, 21, 31, 32, 39; 49, 71, 72, 73, 93 and criminal law 32; see also coercive Police Federation 90 control Police National Database 85 Public Interest Test 91—2 police/policing 28, 45, 49–50, 54, 55, 58, 64–85, 86, 130–1; charging 76–8, 90; Radford, J. 9, 10, 11 community 131–3; ‘cop culture’ 65, 70; Radford, L. 26–7, 133 and CPS 86, 87, 89; criticism of over radical feminism 25, 26–9, 30, 31, 32, 42, giving domestic violence a low profile 43; critique of role of law surrounding 49–50, 64–5; and Domestic Violence domestic violence 63 Disclosure Scheme 84–5; and Domestic Raine, J. 107 Violence Enforcement Campaigns rape 20, 49; within marriage 20, 27, 51 83–4; [first reactive response 66–72; Rape Crisis 26, 48–9, 142 arrest 70–2; arriving at the scene Rape Crisis Centres 47 67–70; police organisation 66–72; Rape Crisis Federation 47 reporting to the police 66–7]; and refuges 24, 47, 131; decrease in funding Home Office Circulars 65; obstacles to of 60 progress 65; and pro-arrest approach remands 106–8; on bail 106–8; in custody 50, 54, 55, 71; and protective orders 108 see protective orders; and repeat vic- repeat victim/victimisation 83, 84, 136, timisation 83; and Scarman Report 49; 145 [secondary response 72–6; at the end of reporting restrictions: and courts 117 police detention 75–6; bail 75–6; deten- restraining orders 55, 81, 125 tion and investigative interview 72–3; retractions, victim 92–5, 113, 139 other sources of evidence 74; police Richards, Hayley 69 statements 73–4; victim personal state- Richie, B. 38 ments 74–5]; working with Women’s Riding, A. 111 Aid 129 risk assessment models 139–42; and policy see law and policy DASH 140 postcode, justice by 57 Robinson, A.L. 57, 136, 138, 139, 140, Power and Control Wheel see Duluth 141 Wheel Royal Commission on Criminal Justice Pre-Sentence Reports (PSRs) 117–18 113 pregnancy 22 Royal Commission on Criminal Procedure preventative policies 55 (1981) 86 prisons 58, 125–6 Downloaded by [University of Defence] at 01:45 24 May 2016 privacy 47 Safety and Justice (White Paper) (2003) private sector 60, 147–8 55, 56, 80, 81, 104, 105, 117, 133 Probation Service 122–3 Sainsbury, Pamela 115 prosecuting 86—102 see also CPS (Crown same-sex domestic violence 19–20, 27, 30 Prosecution Service) ‘Sarah’ 94–5 Prosecution of Offenders Act (1985) 86 Sardinha, L. 128–9 Protection of Freedoms Act (2012) 17 Saunders, H. 3 Protection from Harassment Act (1997) Saving Lives. Reducing Harm. Protecting 17, 32, 53 the Public 58 protective orders 80–3, 125; breaching Scarman Report 49, 132 of 125; Domestic Violence Protective Index 175 Scotland 17 Stark, Evan 10, 35, 36, 38–9, 42 Scottish Crime Survey 19, 34 Starmer, Keir 102 Scottish Legal Aid Board 105 Statistics Commission 23 Scottish Police Statistics 34 Straw, Jack 18, 98 Scottish Women’s Aid 21 self-blame 24 Tackling Perpetrators of Violence against self-defence 33 Women and Girls report (2009) 58–9, sentencing 119–26; community orders 77, 84, 91 122–5; custodial sentences 125–6; Tackling Violent Crime (2008) 135 custody thresholds 121–6; fines 121–2; teenagers: and domestic abuse 13–14 offence seriousness 119–20; and per- Thames Valley Police documentary 49 sonal mitigation 120; and Pre-Sentence Thiara, R.K. 3, 18–19, 37, 38,139 Reports (PSRs) 117–18; protective Thornton, Sara 116 orders 125; purposes of 119; reduced ‘Together We Can End Violence Against sentences for a guilty plea 121 Women and Girls’ 13–14 Sentencing Advisory Panel (SAP) 55, 57, Towers, J. 144 58, 119 Transforming Rehabilitation paper 148–9 Sentencing Council 58 transpatriarchies 29 Sentencing Guidelines Council (SGC) Tregidga, J. 136 57–8, 119, 120, 125 separation 22 UN Universal Declaration of Human Serious Case Reviews (SCRs) 128, 134, Rights 7 143 United States 70; and ‘victimless prosecu- Serious Organised Crime and Police Act tion’ 92–3 (2005) 71 unreality: and coercive control 40 Setting the Boundaries 55 Sex Discrimination Act (1975) 49 Sexual Assault Referral Centres (SARCs) Victim in Court, The (report) 110 67 Victim Focus Scheme 118 sexual offending 52–3, 55 victim personal statements 52, 74–5, 96, sexual violence 20–1, 58; continuum of 26 112, 118 Siddiqui, H. 7 Victim Support 49, 62, 95, 96, 110, 148 Singh, Jyoti 147 victim retraction see retraction, victim Smith, Professor Adrian 23 Victims Advocate Scheme 118 Smith, D.J. 64 Victims Charter 51–2, 110, 126 social network sites 4 Victims Charter (1996) 110 socialisation 26 violence: committing of by women/girls sociological approach: and gender identity 32–3, 34–5; tackling of against women 41 58–9, 61 Soham murders 134 violence against women approach 32, 33, South Asian women 38 35, 142–3 Southall Black Sisters (SBS) 7–8, 26, 30, violent offender orders (VOO) 81–2 32, 63, 114 violent resistance 36 Downloaded by [University of Defence] at 01:45 24 May 2016 Speaking up for Justice report (1998) 54, voluntary sector 62, 147, 148 98, 100 Specialist Domestic Violence Court Walby, S. 2, 11, 18, 144 (SDVC) 28, 57, 58, 60, 104, 135, Walker, Dr Lenore 116 138–9 Walklate, S. 139–40 Specialist Domestic Violence Officers Way Forward, The 59 (SDVOs) 50, 66 Wells, Holly 134 stalking 11, 53 West, Rose 52 Standing Together against Domestic West Yorkshire police 83 Violence 144–5 Westmarland, N 134, 136, 137–8, 145 Stanko, E. 22 ‘wife beating’ 1 176 Index Williamson, E. 40 Women’s Aid Federation 128–30, 146; Wilson, M. 107 definition of domestic violence 16–17 witness anonymity order 100–1 Women’s Freedom League 1 Witness Care Officers 111 Women’s National Commission 60 Witness Care Service 96, 111 Women’s Resource Centre 142 Witness Charter 111 Wood, Clare 84 Witness Service 96, 101, 110–12 Woolfson, R. 18 witnesses 55, 93, 97–101; assisting of working-class 45 vulnerable and intimidated 97–101, World Conference on Women (Beijing) 112; expert 117; and the law 52; sup- (1995) 9–10 port available to 110–11; treatment of by CPS 95 Yones, Heshu 7–8 women: position of in criminal justice Yousafzai, Malala 147 system 58; tackling violence against Youth Justice and Criminal Evidence Act 58–9, 61 (1999) 54, 98–9, 100 ‘Women against Rape’ 51 Women’s Aid 11, 26, 47, 48–9, 129; Zedner, L. 18 Annual Survey (2011/12) 24 Zero Tolerance Trust, The 26 Downloaded by [University of Defence] at 01:45 24 May 2016 Taylor & Francis ORDER YOUR FREE 30 DAY INSTITUTIONAL eBooks TRIAL TODAY! 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