Correct on the date of publication - 11 December 2023

Question: 

Would it be legal to bail someone for a domestic violence matter and then also seek a DVPN/O?

For example following a report of a domestic s.39 battery but with no injury, the injured party doesn't make a complaint, but we are looking to obtain a CPS charging decision based on the evidence from the officers body worn video and 999 call in order to complete a victimless prosecution.

Can a DVPN still be issued by the Police even though the suspect would be on Police bail?

Answer:

The legislative provisions for pre-charge bail and DVPNs are separate and have a different purpose, although it is possible that either one, or both of these provisions can apply when dealing with the suspect in a domestic abuse incident.

Sections 34 – 52 of PACE make provision for pre-charge bail. Pre-charge bail provides a specific date on which the suspect must surrender to custody. Sections 9 and 10 of the statutory guidance on pre-charge bail give guidance on bailing with conditions or without conditions. It states –

“9.1 Bail conditions should be imposed to mitigate any risks that could remain by granting unconditional bail. The investigator is required to consider the necessity and proportionality of any proposed conditions, to present to the custody officer to make the decision. The risks that the suspect poses to the victim(s), witness(es) or public – or to themselves – may give cause to impose a range of conditions on their bail. These will be specific to each case, dependent on the circumstances and assessment of risk.
9.2 Conditions may only be imposed where it is necessary:
·to prevent the suspect from failing to surrender to custody
·to prevent the suspect from committing an offence while on bail
·to prevent the suspect from interfering with witnesses or otherwise obstructing the course of justice
·for that suspect’s own protection – or, if a child or young person, for their own welfare (s 3A(5), Bail Act 1976)”

Sections 24 – 31 of the Crime and Security Act 2010 make provision for domestic violence protection notices and orders. Section 24 provides the power to issue a DVPN. Statutory guidance has been issued for use of these. The purpose of these provisions is to provide protective measures to vulnerable victims.

To issue the DVPN –

  • the suspect must be over 18
  • there must be reasonable grounds for believing that the suspect has been violent or has threatened violence towards an associated person, and
  • that the DVPN is necessary to protect the associated person from violence or threat of violence by the suspect.

The fact that conditional bail has been granted does not necessarily preclude a DVPN being issued. The statutory guidance on DVPN’s confirms at paragraph 1.2 that both bail with conditions and protective measures (such as DVPN’s) can be used simultaneously, where appropriate:
“1.2 It is important to note that bail with conditions and protective measures can be used simultaneously to build up greater protection for the victim.”
 
Also of note is paragraph 2.4 of the guidance, which further states:
 
“2.4 The DVPN / DVPO process does not aim to replace the criminal justice system in respect of charge and bail of a perpetrator. A DVPN will be issued in circumstances where no other enforceable restrictions can be placed upon the perpetrator. It is important that there is no conflict between any bail conditions and the terms of a DVPN.”
 
And, paragraph 2.5:
 
“2.5 Officers should always give consideration to identification of and prosecution for substantive criminal offences, If CPS advice is to charge for a domestic related offence then a DVPN may not be necessary or proportionate where there is a remand in custody (RIC) or when strict bail conditions are in place.”

The APP in this area may also be of some interest to you.