Primary Legislation - Domestic Abuse and Family Proceedings Bill

This appendix provides a description of the clauses in the draft Bill. For ease of explanation these are not necessarily in the correct numerical sequence, dealing with the substantive clauses first followed by other supplementary and/or consequential provisions.

Clause 1 – The domestic abuse offence

Clause 1 of the Bill makes it an offence for someone to engage in a course of abusive behaviour, (that is on at least two occasions), against another person with whom they are (or have been) personally connected. Two individuals are personally connected if they are, or have been, married, civil partners or living together as such, or otherwise have been in an intimate personal relationship with each other, or are close family members. These will be referred to as ‘the accused’ and their ‘partner/connected person’.

The term ‘intimate personal relationship’ is intended to cover relationships between two individuals (including young/teenage and same-sex relationships), although the relationship need not be sexual, nor long-term.

For the offence to apply it is subject to two further conditions:

First, that a reasonable person would consider that the course of behaviour would be likely to cause the partner/connected person to suffer physical or psychological harm (fear, alarm and distress).

Second, that the accused intended to cause harm or was reckless as to whether or not harm would be caused. This condition could be met, for example, where the accused is persistently verbally abusive and demeaning towards their partner/connected person but claims that they did not intend their behaviour to cause psychological harm, and the court is satisfied that the accused’s behaviour was such that they were, at the very least, reckless as to whether their behaviour would cause harm to their partner/connected person.

As a result the offence can be committed regardless of whether or not harm is actually caused to an individual.

The provisions may apply where two teenagers are involved in an abusive relationship or where there is domestic abuse of a parent or grandparent by an adult child.

Clause 2 – What amounts to abusive behaviour

Clause 2 sets out what constitutes abusive behaviour for the purposes of the offence. The description is not exhaustive and includes violent or threatening behaviour (including sexual violence and abuse). It also includes behaviour that is directed at the partner/connected person, their child or another person, that may have one or more certain effects on the partner/connected person (or a reasonable person would consider it likely to have one or more of those effects).

These effects are broad provisions and capture a range of abusive behaviour including where the accused is:

• making the partner/connected person dependent on, or subordinate to them (e.g. by preventing them from having access to money, forcing them to leave their job or education or excluding them from household decision-making);
• isolating them from friends, family members or sources of social interaction or support (e.g. by not allowing visits from their friends or family or deliberately failing to pass on messages from friends or family);
• controlling, regulating or monitoring their day to day activities (e.g. by controlling their movements, checking their phone, e-mail or social media use, controlling what clothes they can or cannot wear, placing unreasonable requirements on them, for example, to prepare meals in a particular way at a particular time every day or to answer the phone within three rings);
• depriving or restricting their freedom of action (e.g. by preventing them from leaving the house alone, insisting on accompanying them to medical appointments, or taking decisions for them in relation to private, individual matters that a person would normally decide for themselves); and
• making them feel frightened, humiliated, degraded, punished or intimidated (e.g. through abusive name-calling, threats of self-harm or playing mind games that cause them to doubt their sanity).

Clause 3 – Impact of behaviour on victim

Clause 3 provides that, for the offence to be committed, it is not necessary to prove that the behaviour actually caused the partner/connected person to suffer physical or psychological harm, or that the effects of the abusive behaviour, (set out under clause 2) actually caused harm. Rather it is sufficient that a reasonable person would consider that the behaviour would be likely to result in harm. This is intended to cover situations where a victim may not consider that they have been harmed, effectively due to either their resilience or abusive behaviour having become normalised within the context of the relationship.

This provision does not prevent evidence being led of actual harm, as a result of the alleged course of behaviour, or of effects that the behaviour actually had on the partner/connected person.

Clause 4 – Meaning of behaviour, etc.

Clause 4 sets out what is meant by behaviour for the purpose of the Bill and how it can be carried out. It provides that behaviour includes saying or otherwise communicating something as well as doing something. It includes an intentional failure to do, say, or otherwise communicate something. This could include, for example, a consistent and deliberate failure to pass on times and dates of appointments or social occasions, a consistent and deliberate failure to feed a family pet or a failure to speak to or communicate with an individual. It also provides that abusive behaviour can include where abuse is carried out with, or through a third party, whether knowingly or not.

Clause 4 also provides for the way in which the behaviour can be carried out, that is behaviour by the accused either directly towards their partner (or a connected person) through another person, third party or property. It is not a requirement that the property must belong to the accused’s partner/connected person. It could, for instance, be shared property or property belonging to the parents of their partner/connected person. Property will also include pets or other animals (for example agricultural livestock) whether belonging to the victim or others.

The clause also provides that behaviour directed at a person includes behaviour carried out with or through a third party. This might include, for example, the accused getting another person to spy on or report on the activities of their partner or a connected person. The third party’s involvement could possibly be unwitting or unwilling, as they may be entirely unaware that their behaviour was helping the accused to abuse their partner/connected person or they may have been coerced into participating in the abuse.

It also sets out that a course of behaviour involves behaviour on at least two occasions. While there could be a significant time lapse between the two occasions, it would be for the court to determine in the particular circumstances of a case whether two incidents occurring far apart in time, with no evidence that they formed part of any wider pattern of behaviour, constituted a course of behaviour.

Clause 8 – Aggravation where victim is under 18

Clause 8 provides for aggravation of the domestic abuse offence, where the person in the relationship is under the age of 18. The aggravation applies where it is shown that, at any time in committing the offence, it has been committed against someone that was under the age of 18. An example of this may be an adult in a relationship with a teenager or a teenage relationship. It would also apply to wider family relationships where one of the individuals is under the age of 18 (it would not apply in relation to an adult child parental relationship given wider child protection provisions are already in place to provide for this).

Where the aggravation is proved, the court must state on conviction that the offence is aggravated and take the aggravation into account when determining sentence, as a factor which increases the seriousness of the offence. The court is also required to state how the aggravation has affected the sentence and record the conviction in a manner which shows that the offence was aggravated by reason of involving a victim under the age of 18. This will clearly demonstrate where there has been aggravation and also enable relevant data to be collected.

Clause 9 – Aggravation where relevant child is involved

Clause 9 provides for aggravation of the domestic abuse offence, where a child is involved (who is not the accused or the victim of the domestic offence). The aggravation applies where it is shown that, at any time in committing the offence, the accused directed behaviour at a child. For example, by threatening violence towards a child or making use of that child control or frighten the partner/connected person.

The aggravation would apply where it is shown that, in committing the offence, the accused made use of the child in directing behaviour at their partner/connected person. An example of this might be where the accused encourages or directs a child to spy on or report on the day-to-day activities of their partner or a connected person, so as to enable the accused to control, regulate or monitor that person’s day-to-day activities. The involvement of the child could be unwitting or unwilling, and the child need not be aware that they are helping the accused to abuse their partner or a connected person, for example, by telling the accused about the other person’s activities.

The aggravation would also apply where a child sees, hears or is present during an incident of abusive behaviour. This could, for example, be a physical assault or an incident of psychological abuse. The child might be upstairs in their room or they could be trying to protect their mother/father.

The aggravation would apply to the involvement of any child in the domestic abuse offence. This would include, for example, the accused or victim’s own child, another child living in or visiting the household, or a neighbour’s child.

Where the aggravation is proved, the court must state on conviction that the offence is aggravated and take the aggravation into account when determining sentence, as a factor which increases the seriousness of the offence. The court is also required to state how the aggravation has affected the sentence and record the conviction in a manner which shows that the offence was aggravated by reason of involving a child. This will clearly demonstrate where there has been aggravation and also enable relevant data to be collected.

Clause 15 – Aggravation as to domestic abuse

Clause 15 provides for any offence, other than the domestic abuse offence, to be aggravated by reason of involving domestic abuse. For example, the aggravation could be used with a charge of criminal damage, assault or sexual offences in a domestic setting where harm is likely to be caused.

Where the aggravation is proved, the court must state on conviction that the offence is aggravated and take the aggravation into account when determining sentence, as a factor which increases the seriousness of the offence. The court is also required to state how the aggravation has affected the sentence and record the conviction in a manner which shows that the offence was aggravated by reason of involving domestic abuse.

Clause 16 – What amounts to the aggravation

As with the domestic abuse offence, there are a number of conditions for the aggravation to apply which are set out in this clause. These are that:

(i) a reasonable person would need to consider that the offence would be likely to cause the accused’s partner or a connected person to suffer physical or psychological harm

(ii) the accused either intended by the offence to cause their partner/connected person to suffer physical or psychological harm, or was reckless as to whether or not this would be caused; and

(iii) the two individuals are personally connected, that is are partners or connected persons.

The aggravated offence itself does not have to have been committed against the accused’s partner/connected person, rather it can be against a third party with the purpose of abusing their partner or a connected person. Also harm does not have to have been caused to the partner/connected person as a result of the offence, rather that a reasonable person would consider that harm would be likely to be caused. As such, the aggravation could be in effect where, for example, the accused commits criminal damage against a friend of their partner/connected person, with the intent of causing psychological harm to their partner or a connected person.

Clause 21 – No right to claim trial by jury

Clause 21 makes an amendment to Article 29 (1) of the Magistrates’ Courts (Northern Ireland) Order 1981. The amendment adds the domestic abuse offence to the exemptions listed. This effectively prohibits those accused of a summary offence of domestic abuse, before a Magistrates’ Court, from the right to elect for trial by jury at Crown Court.

Clause 22 – Special measures directions

Clause 22 amends the Criminal Evidence Order 1999 to enable complainants of the domestic abuse offence and aggravated offences to automatically be eligible for consideration of special measures when giving evidence (for example the use of live links, screens, etc.)

Clause 23 – Prohibition of cross-examination in person (criminal proceedings)

Clause 23 makes amendments to the Criminal Evidence (Northern Ireland) Order 1999. The purpose of the amendments is to add the domestic abuse offence to the list of offences which prohibits the accused from cross-examining a partner/connected person in person. This applies to the domestic abuse offence and the domestic abuse aggravator as well as any connected offence (of whatever nature) that the accused is charged within in the proceedings. The prohibition applies only to hearings where a partner/connected person is to give evidence.

Both clauses 21 and 23 are intended to remove the possibility that the processes of the criminal justice system may be used by the accused to further abuse and control a partner/connected person.

Clause 26 – Prohibition of cross-examination in person (family proceedings)

Clause 26 inserts new provision into the Family Law (Northern Ireland) Order 1993 to protect victims of abuse from being cross-examined by perpetrators in person in family proceedings. This provision is intended to ensure that the family justice system is not exploited by perpetrators as a means to continue to abuse and control their victims, as well as enabling victims to be supported to give their best evidence.

An automatic prohibition will apply in certain circumstances. A party to family proceedings who has been convicted of, or given a caution for, or is charged with specified offences will be prohibited from cross-examining, in person, a witness who is the victim, or alleged victim, of that offence and vice versa. Relevant offences will be specified in secondary legislation. An automatic prohibition will also apply where an “on-notice” protective injunction, such as a non-molestation order, is in place. The party against whom the order is made will be prohibited from cross-examining, in person, a witness who is protected by the injunction and vice versa. Relevant protective injunctions will be specified in secondary legislation. Finally, an automatic prohibition on cross-examination in person will apply, where specified evidence is adduced that a party to family proceedings has been abusive towards a witness to whom they are personally connected and vice versa. The evidence will be specified in secondary legislation.

Where one of the statutory prohibitions does not apply, the court will have discretion to make a direction prohibiting cross-examination in person, where it would affect the quality of the witness’s evidence or cause significant distress.

Where a party is prohibited from cross-examining in person, a court will have the power to appoint a legal representative to conduct the cross-examination on behalf of the party. A legal representative appointed by the court will be funded by the Department. There is provision for guidance to be issued in connection with the appointment of a legal representative by the court, to provide clarity about the role to courts, practitioners and parties.

SUPPLEMENTARY PROVISIONS

Clause 5 – Meaning of personal connection

Clause 5 is an interpretation provision. It defines two people as personally connected if they are or have been married to each other or in a civil partnership, or who live together or have been living together as if spouses. For those that are partners or are effectively a couple, but not living together or in a long term relationship, they would be covered by the term ‘intimate personal relationship’.

The clause also defines a family member as a parent, grandparent, child (or step-child), grandchild or sibling (including half-sibling) and makes provisions for these relationships in relation to each of the partners.

Clause 6 – Establishing connection by notice

Clause 6 provides that in relation to the matter of two individuals being personally connected the prosecutor may service notice proposing that this be taken as established, unless the personal connection is challenged. This applies to the domestic abuse offence under clause 6 and under clause 19 for the purposes of the aggravator.

The clause sets out the manner and timing in which a challenge must be raised, that is not later than the seventh day after the day of service, in writing, stating the reason for objection. The clause also recognises under special circumstances later objection in court is allowed.

Clause 7 – Service of notice on people

Clause 7 provides for the service of notices in relation to Clause 6 for the purpose of challenging that a relationship is to be taken as established. It states that notice will be served through hand, postal or, where agreed, electronic delivery to the accused or the accused’s solicitor.

The clause also provides clarity in terms of what is meant by certain terms, for example electronic address and working day. It also outlines that in its application to service under this section, section 24(1) of the Interpretation Act (Northern Ireland) 1954 applies in regard to the reference in it to the person’s usual or last known place of abode or business as if that were a reference to the person’s proper address.

Clause 10 – Behaviour occurring outside the UK (Extra-territorial jurisdiction)

Clause 10 relates to extra-territorial jurisdiction. This provides that the domestic abuse offence can be constituted by a course of behaviour engaged by an accused occurring wholly or partly outside the United Kingdom when the accused is habitually resident in Northern Ireland, or is a United Kingdom national.

The clause outlines that proceedings may be taken in any place in Northern Ireland, and the offence may for incidental purposes be treated as having been committed in any place in Northern Ireland.

A “United Kingdom national” is defined as a person who is, as stated under the British Nationality Act 1981, a British citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, a British subject, or a British protected person.

Clause 11 – Exception where responsibility for children

Clause 11 provides that the domestic abuse offence would not apply where an individual has parental responsibility for an individual under the age of 18. It is considered in these instances that there are wider child protection provisions that should apply. This would not prevent the domestic abuse offence being aggravated where a child is present when the abuse is taking place or where use is made of that child to commit the domestic abuse offence through making use of the child to abuse the other person.

Clause 12 – Defence on grounds of reasonableness

Clause 12 provides that it is a defence to the domestic abuse offence for the accused to show that the course of behaviour was in the particular circumstances reasonable.

This may apply where, for example, the accused acted in order to protect the household finances where their partner or a connected person is suffering from a gambling addiction, or to prevent their partner from associating with certain persons or frequenting certain places if they are recovering from alcohol or drug addiction. It may also apply where the freedom of movement of the accused’s partner or a connected person is restricted for their own safety due to the effects of suffering from dementia. This relates to a test of reasonableness and each case will be informed and determined by the evidence presented.

The clause also provides that the accused may bring forward enough evidence to raise an issue as to whether the course of behaviour was reasonable, while the burden on the prosecution will be to disprove the defence offered and prove beyond reasonable doubt that the offence has been committed.

Clause 13 – Alternative available for conviction

Clause 13 provides that, where a charge is brought for the domestic abuse offence but the court is not satisfied that this has been committed, it is possible to convict the accused of a specified alternative offence. That the accused committed the alternative offence would have to be proved (to the normal criminal standard of proof). An alternative offence is either an offence of ‘harassment’ or ‘putting people in fear of violence’ as cited under Articles 4(1) and 6(1) of the Protection from Harassment (Northern Ireland) Order 1997. It is intended that in due course this could also include any stalking offence that is brought forward.

Clause 14 – Penalty for the offence

Clause 14 provides that the penalty for the offence is 12 months or a fine (or both) on summary conviction (that is at magistrate’s court level) and 14 years or a fine (or both) on conviction on indictment (that is at Crown Court level). The higher sentence is intended to reflect the fact that the offence could incorporate physical and sexual violence as well as non-physically abusive behaviour.

Clause 17 – Exception regarding the aggravation

Clause 17 provides that the domestic abuse offence would not apply where someone has parental responsibility for an individual under the age of 18. It is considered in these instances that there are wider child protection provisions that should apply.

Clause 18 – Meaning of personal connection

Clause 18 is an interpretation provision and is similar to clause 5 in terms of defining personally connected and family.

Clause 19 – Establishing connection by notice

Clause 19 makes provision for establishing that two individuals are personally connected and is similar to the material set out at clause 6.

Clause 20 – Service of notice on people

Clause 20 makes provision for the service of notices in relation to clause 19 for the purpose of challenging that a relationship is to be taken as established. This is similar  to the material set out at clause 7.

The clause also provides clarity in terms of what is meant by certain terms, for example electronic address and working day. It also outlines that in its application to service under this section, section 24(1) of the Interpretation Act (Northern Ireland) 1954 applies in regard to the reference in it to the person’s usual or last known place of abode or business as if that were a reference to the person’s proper address.

Clause 24 – Meaning of offence involving domestic abuse etc.

Clause 24 is a technical amendment relating to changes to the Criminal Evidence Order 1999, providing that an offence involving domestic abuse means both the domestic abuse offence and offences aggravate by reason of involving domestic abuse.