Despite noble intentions, the Domestic Violence Crime and Victims Act 2004 is not working, argues District Judge Edwina Millward


There can be no doubt about the intention of the Domestic Violence Crime and Victims Act 2004. It was to send a clear message to the perpetrators of domestic violence and abuse - the fact that the violence was domestic made it no less serious than any other form of violence, and breach of a non-molestation order would likely result in criminal proceedings.



It is a recognised statistic that victims of domestic violence and abuse will, on average, suffer some 35 incidents before taking action. The priority of most victims is to stop the violence rather than to punish the perpetrator. Parliament was warned during the passage of the bill that the effect of making the breach of a non-molestation order a criminal offence would be to deter victims from seeking orders and, because of the differences in the nature of civil and criminal proceedings, victims would be made even more vulnerable.



Before the act, where a breach of an order with a power of arrest was alleged, the perpetrator had to be brought before the court within 24 hours of arrest, and in some cases would be dealt with by the court on that first appearance and, if not, then a full hearing had to quickly follow. The victim generally had a legal representative, and the court usually had full information about the parties, their children and the behaviour which had led to the order being granted, and the standard of proof was the civil standard.



If there is a breach of a non-molestation order, the theory now is that victims have a choice whether to seek a warrant of arrest or rely on criminal proceedings. In many cases the choice will be illusory since seeking a warrant of arrest will depend on the availability of public funding. In the majority of cases following a breach, the alleged perpetrator will be arrested by the police. They will first have to decide whether to arrest for alleged breach of a non-molestation order, or under a power of arrest attached to an occupation order which forbade the alleged perpetrator from going to the victim's home or within a specified distance of the home. If the former, the case will be passed to the Crown Prosecution Service, which will consider the evidence, the wishes of the victim and whether or not a conviction is likely to be secured. A decision as to future action will then be taken. That decision maker will not have seen the original statement made by the victim and will have no clear picture of the history of the matter. If a charge is preferred, the alleged perpetrator may elect trial by jury.



What will be the effect on both the victim and the perpetrator if no action is taken? The victim will doubtless wonder whether the effort of securing an order was worthwhile and the perpetrator will get a clear message that his conduct is not going to be punished.



My own experience and anecdotal information from the judiciary suggests that not only have the number of applications for non-molestation and occupation orders declined, but that few breaches of non-molestation orders are being prosecuted. Where a prosecution does follow, the normal rules for any criminal trial and the higher criminal standard of proof apply. As domestic violence tends to happen in private, there may be little corroborative evidence to support the prosecution and there is a real danger that victims will be left without redress and with a very real sense of injustice.



If, when reliable statistics are available, they bear out the anecdotal evidence, serious consideration should be given to the repeal of the act and a return to civil committal for breaches of civil domestic violence orders, coupled with an increase in the jurisdiction of the Circuit and District benches in sentencing for contempt.



District Judge Edwina Millward, who sits at Maidstone Combined Courts, is the new president of the Association of Her Majesty's District Judges