Domestic Abuse Protection Notices and Domestic Abuse Protection Orders
New domestic abuse protection orders are being piloted from the last week of November 2024. The pilot will operate in Greater Manchester, three London boroughs (Croydon, Sutton, and Bromley), and with the British Transport Police. Expect these provisions to be rolled out nationwide sometime in 2025.
The protections are governed by the framework set out within the Domestic Abuse Act 2021. They will permit the police to issue a notice ordering suspects to comply with certain restrictions. If that is unsuccessful, the court can intervene to make an order. Breaching that Order is a criminal offence even if no other crimes can be proven.
These notices and orders follow a trend in criminal law to allow the creation of bespoke crimes for individuals. Other examples include the Community Protection Notices and Orders, and Stalking Prevention Orders. Both of which aim to control the behaviour of people thought to be a danger or nuisance to others.
What is domestic abuse
The Domestic Abuse Act 2021 defines domestic abuse as behaviour by person A towards person B where both have a personal connexion and are aged over 16 years. The behaviour is abusive if it involved physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; or psychological, emotion or other abuse.
A personal connexion is one where A and B are or have been married, civil partners, engaged to be married, agreed to become civil partners, or they are or have been in an intimate personal relationship with one another. A personal connexion can also be shown if A is the parent or has parental responsibility for B.
Domestic Abuse Notices
A Domestic Abuse Notice is made by a senior police officer who has reasonable grounds to believe the suspect has been abusive towards a person to whom they are personally connected. The suspect must be 18 or older. The complainant must be 16 or older. There is an ongoing campaign to remove these age restrictions.
The police officer issuing the notice should ensure that the suspect has the chance to make representations. He should consider those representations when deciding whether to issue a notice or not. This is your first opportunity to stop the process in its tracks. You would be wise to instruct a solicitor urgently at this stage.
The notice can order the suspect not to contact the complainant and not to go near the complainant’s home. If the suspect and complainant live together, the police can require the suspect to leave his home and not re-enter it. Finally, the police can prohibit the suspect from evicting the complainant.
Let's imagine John and Louise are in a relationship and live together in John’s house. Louise makes a complaint that she has been abused by John. The police can order John to leave his home and can ban him from taking action to evict Louise!
If you have not instructed a solicitor already you should do so as a matter of urgency at this stage. You can call Nick Diable on 0800 998 7953.
Breaching the Notice gives police the power to arrest the suspect immediately and hold you in the cells until you can be brought before the court when the court will decide whether to impose an Order.
Domestic Abuse Protection Orders
A Domestic Abuse Protection Order can be made by the magistrates’ courts, family courts, civil courts, and any criminal court following a conviction.
Experience of other types of behaviour order suggest to us that Domestic Abuse Protection Orders will be used in conjunction with prosecution for offences like assault, rather than simply being sought post-conviction. That would mean the police issuing a Notice and seeking an Order at a very early stage of an investigation.
At the time of writing (November 2024) a typical criminal investigation can take some time, especially if digital evidence needs to be obtained and considered. We foresee these Orders being used by police in situations where they anticipate a delay between arrest and charge of a suspect.
Conditions for making an Order
The court must be satisfied that the suspect is 18 or older. That the complainant is 16 years or older. That they are personally connected and that he has been abusive towards the complainant. Secondly, the court must be satisfied that an Order is necessary and proportionate to protect the complainant from the risk of abuse.
When applying for the Order, the police need only convince the court that the suspect has been abuse on the balance of probabilities. That means that it is more likely than not that the suspect’s behaviour was abusive. This is a very low test for the police to overcome. A normal criminal case requires proof beyond reasonable doubt, the requirement here is far lower.
Contents of an Order
The court may make an requirement it considers necessary as part of the Order.
The legislation suggests requirements preventing the suspect from contacting the complainant. A requirement that bans him going within a specified distance of the complainant’s home or other place, such as a workplace or family member’s home.
Where the suspect and complainant live together, the court can require the suspect to leave the home, ban him from re-entering it, and ban him from evicting the complainant.
Compliance with the Order can be monitored through the use of electronic monitoring equipment, i.e. a non-removable ankle tag. A court can order you to wear the tag for up to a year!
How long does a Domestic Abuse Prevention Order last?
The Order takes effect the moment it is made by the court.
The court should specify how long the Order will last when they make it and may make different requirements last different periods of time. For example, the ankle tag monitoring might last a year, but the overall Order might last two-years.
The court has three options when choosing a length. First, they can specify a period, e.g. six months. Their second option is to make it last until a particulate event occurs, e.g. you are banned from going to 100 High Street until the complainant moves away. Finally, the court could choose to make the Order last “until further notice”, i.e. indefinitely.
Breaching an Order
Choosing to ignore any requirement in the Order is a criminal offence. The breach can be dealt with either as a contempt of court or as an offence under section 39 of the Domestic Abuse Act 2021.
A magistrates’ court can imprison you for up to six months at the time of writing (November 2024); however, there is talk of this being increased to a year.
A Crown Court can imprison you for up to FIVE YEARS!
It is likely that this sentence will be longer than that imposed for most substantive offences, e.g. assault, or coercive control.
You might consider that the best way to avoid the risk of a lengthy prison sentence for breaching a Domestic Abuse Protection Order is not to be subject to the Order in the first place! That’s why we recommend making submissions to the police early. Then challenging the police when they try to obtain an Order in court.
Because of the speed with which the police must bring these applications to court, we anticipate that there will be lots of occasions where a robust challenge leaves them unable to persuade the court to make the Order. For example, we dealt with an application for a Domestic Violence Prevention Order at Bromley Magistrates’ Court (one of the pilot courts for the new Domestic Abuse Protection Orders) earlier in 2024. We succeeded in persuading the court not to impose the Order. Our client strongly denied the allegations made by his wife. We were able to show that there were flaws in the police evidence. We anticipate that future applications will be as chaotic as that one because police and their lawyers simply don’t have enough time to prepare, and many are not familiar with these applications. That means they are trying to assimilate both the evidence and the law (plus the law of evidence relevant to these applications) in a very short time before the hearing takes place.
What can I do?
You may feel that we have a vested interest in this advice, but we really do think that picking up the phone and calling us on 0800 998 7953 is the best thing you can do. The sooner into this process you call, the more we can do to help you.
We can start by making representations to the police to try and prevent the Notice being issued in the first place. If that’s unsuccessful, we can appear in court with you to oppose the making of the Order.
If an Order has already been made by the time you read this, we can help you apply to vary or remove it. You can apply if you are the person subject to the Order, or if you are the person it was made to protect!
If you have been accused of breaching an Order, then we can help you contest the breach. Remember though that the fact an Order shouldn’t have been made is not a defence to breaching a properly made Order! So, don’t think you can breach the Order then challenge its validity.
Call us now and ask to speak to Nick Diable on 0800 998 7953.