25 May 2021
Written by: Helen Hanley, PNLD Legal Adviser
Not reviewed after the date of publication
Abuse of men/women in a domestic setting has existed for many years and sadly still occurs. Attempts have and are being made to stop this abuse. The Domestic Abuse Act 2021 seeks to continue in this endeavour by raising awareness and understanding of domestic abuse and further improving the effectiveness of the justice system. The Act, which extends to England and Wales, or England only (in some provisions), was given royal assent on the 29th April 2021. Although most of its provisions are not currently in force, the provisions are to be brought in force and implemented within the Criminal Justice System later this year.
In this article, PNLD Legal Adviser, Helen Hanley, provides a brief overview of the Act in preparation for the implementation of its provisions.
The Act is divided into seven parts. A brief outline of each part is detailed below:
PART 1 - The new cross-government statutory definition ‘domestic abuse’ – not yet in force
‘Domestic violence’ (the term commonly associated with and used to describe acts of abuse in the home setting) will no longer be of relevance, as the new term ‘domestic abuse’ will be the statutory term for this. The introduction of this new cross-government definition is key, as it will help to ensure that domestic abuse is properly understood, considered unacceptable and actively challenged across statutory agencies and in public attitudes.
The new statutory definition of ‘domestic abuse’ is as follows:
Behaviour of a person (‘A’) towards another person (‘B’) is ‘domestic abuse’ if:
A and B are each aged 16 or over and are personally connected to each other, and
the behaviour is abusive.
Behaviour is ‘abusive’ if it consists of any of the following:
physical or sexual abuse;
violent or threatening behaviour;
controlling or coercive behaviour;
economic abuse (means any behaviour that has a substantial adverse effect on B’s ability to acquire, use or maintain money or property or obtain goods and services);
psychological, emotional or other abuse;
and it doesn’t matter whether the behaviour consists of a single incident or a course of conduct.
Two people are ‘personally connected’ to each other if any of the following applies:
they are, or have been, married to each other;
they are, or have been, civil partners of each other;
they have agreed to marry one another (whether or not the agreement has been terminated);
they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
they are, or have been, in an intimate personal relationship with each other;
they each have, or there has been a time when they each have had, a parental relationship in relation to the same child, that is, the person is a parent of the child or the person has parental responsibility for the child (parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child and his property).
they are relatives.
‘Relative’ has the meaning given by section 63(1) of the Family Law Act 1996, which is –
the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person's spouse, former spouse, civil partner or former civil partner, or
the brother, sister, uncle, aunt, niece, nephew or first cousin (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person's spouse, former spouse, civil partner or former civil partner
and includes, in relation to a person who is cohabiting or has cohabited with another person, any person who would fall within paragraph (a) or (b) if the parties were married to each other or were civil partners of each other;
Children will be explicitly recognised as victims if they see, hear or otherwise experience the effects of abuse.
Guidance providing examples of ‘domestic abuse’ will be produced at a future date to further clarify this definition.
PART 2 - The Domestic Abuse Commissioner – not yet in force
Part 2 of the Domestic Abuse Act 2021 establishes in law the office of the Domestic Abuse Commissioner. The role of the Commissioner will be to provide public leadership on domestic issues and play a key role in overseeing and monitoring the provision of domestic abuse services in England and Wales.
PART 3 - Powers for dealing with domestic abuse – not yet in force
Domestic Violence Protection Notices (DVPN) and Domestic Violence Protection Orders (DVPO), currently provided by sections 24 to 33 of the Crime and Security Act 2021, will no longer be used when this part of the Act is brought in force. Domestic Abuse Protection Notices (DAPN) and Domestic Abuse Protection Orders (DAPO) will replace them.
A DAPN, like the current DVPN, will give victims immediate protection following an incident. They are to be issued in writing by the police and will, for example, require a perpetrator to leave the victim’s home, prohibit the perpetrator from entering the home, etc. When a perpetrator is then found to be in breach of the notice, the police will have a power to arrest the perpetrator and bring them to the appropriate Magistrates’ Court.
A DAPO is like the current DVPO, in that the police will make an application to a magistrates’ court for it. However, unlike the DVPO, part 3 of the Domestic Abuse Act 2021 will also provide:
an alternative application route for victims and specified third parties to apply for a DAPO directly to the family court; and
criminal, family and civil courts will be able to make a DAPO of their own volition during existing court proceedings. Such court proceedings do not have to be domestic related themselves.
A DAPO may include prohibitions or positive requirements.
An example of a prohibition would be making any form of contact with the victim prohibited.
A positive requirement would be for example, requiring the perpetrator to attend a behaviour change program; an alcohol or substance misuse programme or a mental health assessment. Requirements imposed may be varied by the courts so that they can respond to changes over time in the way in which the perpetrator behaves and the level of risk that they pose to the victim. The Courts will also have the express power to use electronic monitoring (‘tagging’) to monitor a perpetrator’s compliance with certain requirements imposed by the DAPO.
DAPOs will also include notification requirements, requiring perpetrators to notify the police of their name and address and of any changes to this information. When a person gives a notification, the person must allow the police to take their fingerprints or photograph for the purpose of the police verifying the person’s identity.
Three offences will be created in relation to the notification requirements under a DAPO:
Fail, without reasonable excuse, to comply with a notification requirement.
Notify the police, in purported compliance with a notification requirement, of any information which the person knows is false.
Fail, without reasonable excuse, to allow the police to take fingerprints or photograph for the purposes of establishing identity regarding a notification requirement.
A new offence will also be created in relation to the requirements included in the DAPO itself:
A person who is subject to a DAPO, who without reasonable excuse, fails to comply with any requirement imposed by the order will commit an offence.
Section 24 of PACE provides a power of arrest for these offences.
Also, persons other than the police, such as:
the person who applied for the order (if they applied for the order under section 28)
the person protected by the DAPO; or
any other person with leave of the relevant judge;
can apply to the relevant judge for the issue of a warrant for the perpetrator’s arrest, if they consider that the perpetrator has failed to comply with the order or is otherwise in contempt of court in relation to the order. Once the court issues a warrant for arrest for the breach, the police will then have a power to arrest under the warrant for the purpose of bringing the perpetrator before a relevant court. Should the court not immediately dispose of the matter, the court may then remand the perpetrator.
Other protective orders, such as Non-Molestation Orders and Restraining Orders, will remain in place. This is so that they can be used in cases which are not domestic abuse related, such as cases of stalking or harassment where the perpetrator is not a current or former intimate partner or a family member. However, the intention behind the DAPO is that they will become the ‘go to’ protective order in cases of domestic abuse and statutory guidance will be issued to cover how DAPOs fit within the existing protective order landscape and scenarios in which they should be considered.
PART 4 - Local Authority Support (not yet in force)
Part 4 of the Act will place a duty on each relevant local authority in England to provide support to victims of domestic abuse and their children within refuges and other safe accommodation.
PART 5 - Protection for victims, witnesses, etc. in legal proceedings (not yet in force)
Part 5 of the Act will:
Enable all victims of ‘domestic abuse’ (definition provided in section 1 of the Act) eligible to make an application for special measures in the criminal, civil and family courts. The court will then have to satisfy itself that the special measure or combination of special measures is likely to improve the quality of the witness’s evidence before granting an application. In making this assessment, the circumstances of the case, including in particular any views expressed by the witness; and whether the measure or measures in question might tend to inhibit the witness’s evidence being effectively tested by a party to the proceedings, will be taken into account. Special measures could include one or a combination of: screens; live link; evidence given in private; removal of wigs and gowns by judges and barristers; video-recorded interview and pre-recorded cross examination.
Ensure that perpetrators of abuse will no longer be permitted to cross-examine their victims in person in family and civil courts in England and Wales.
PART 6 - Offences involving abusive or violent behaviour (partially in force)
On the 29th April 2021, section 71 of the Act came in force. This section clarifies the existing law to further deter claims of ‘rough sex gone wrong’ in cases involving serious death or serious injury. It codifies the principle set out in the case of R v Brown 1993 meaning that a defence that the victim consented to the infliction of the serious harm for the purposes of obtaining sexual gratification for an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861, is no longer available.
Other key changes to be made by Part 6 are:
The meaning of the term ‘personally connected’ in the offence of controlling or coercive behaviour in an intimate or family relationship (section 76 of the Serious Crime Act 2015) is to be amended so that this offence extends to covering post-separation abuse. A new offence of non-fatal strangulation or suffocation is to be inserted into the Serious Crime Act 2015 under section 75A.
The ‘revenge porn’ offence – disclosing private sexual photographs and films with intent to cause distress, created under section 33 of the Criminal Justice and Courts Act 2015, will be amended so that it also covers threats to disclose private sexual photographs and films with intent to cause distress.
Jurisdiction of the courts will be extended:
in England and Wales to relevant offences committed outside the UK by a UK national or a person habitually resident in England or Wales.
in Northern Ireland to relevant offences committed outside the UK by a UK national or a person habitually resident in Northern Ireland.
in Scotland to relevant offences committed outside the UK by a UK national or a person habitually resident in Scotland.
PART 7 - Miscellaneous and general provisions (not yet in force)
Part 7 of the Act will:
Place a statutory duty on the Secretary of State to publish a domestic abuse perpetrator strategy (to be published as part of a holistic domestic abuse strategy).
Place the guidance underpinning the existing Domestic Violence Disclosure Scheme (DVDS, also known as Clare’s Law) on a statutory footing. Under this scheme, an individual or relevant party (for example, a family member) has a ‘right to know’ meaning they can ask the police to check whether a current or ex-partner has a violent or abusive past. The police may also make a disclosure on their own initiative if they receive information (for example, information from a criminal investigation, through statutory or third sector agency involvement, or from another source of police intelligence). A disclosure can be made lawfully by the police under this scheme if the disclosure is based on the police’s common law powers to disclose information where it is necessary to prevent crime, meaning that the disclosure must:
comply with established case law, as well as data protection and human rights legislation; and
it must be reasonable and proportionate for the police to make the disclosure, based on a credible risk of violence or harm.
The Act will not change the legal basis under which the police can make a disclosure but places a duty on the police to have regard to the guidance about the DVDS to ensure that the scheme is used and applied consistently across all police forces. The aim of the change is to encourage more requests under the scheme to be made and addressed by the police.
Prohibit GPs and other health professionals from charging a victim of domestic abuse for a letter to support an application for legal aid.
Ensure that when local authorities rehouse victims of domestic abuse, they do not lose a secure lifetime or assured tenancy.
Provide that all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance.
Enable domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody.
For further information regarding this Act and its implementation, please see:
https://www.legislation.gov.uk/ukpga/2021/17/contents/enacted for the full provisions of the Act;
Domestic Abuse Act 2021 commencement schedule - GOV.UK (www.gov.uk) for the commencement schedule of the Act.
The Domestic Abuse Act 2021 on PNLD details the provisions that are currently in force.