Protection under Criminal Law

Introduction

It is crucial that women are made aware of their legal options, even though taking legal action sometimes leads to further attacks and may leave them at a greater risk. It is, therefore, important not to put a woman under any pressure to take legal action. It must be her decision.

It is important to inform abused women of all their rights to protection under both the civil and the criminal law. If they are frightened of someone they know or live with, then they have a right to be protected under the law in a number of ways.

• Being assaulted by someone you know or live with is just as much a crime under criminal law as violence from a stranger. Everyone has the right to protection from domestic violence from the police and the courts.
• Women can apply for a court order to stop their abuser from harassing or hurting them, or to keep him out of, or away from, their home.
• If women are too frightened to stay at home, they can get help with emergency or temporary accommodation.
• The law can also help to protect their children and help them make safe arrangements for child contact.

Police response: what action can the police take?

The police are the most likely agency that women will contact in a crisis, during an incident of violence, or when the man breaks an injunction, or if the children are in danger. If a woman calls the police because her partner or ex-partner is hurting or threatening to hurt her or her children, then they have a duty to help and to investigate the complaint. It is the responsibility of the police to respond to calls for protection and to enforce the criminal law.

Most 999 calls to the police concerning violence in the home will be attended first by ordinary uniformed officers. Most police forces now have guidelines about how to respond to domestic violence, and officers will usually arrest and remove the abuser, or hold him in another room while they talk to the woman separately. This will be followed up by officers from the Community Safety Unit, who are plain clothes police officers. In an emergency they can also arrange accommodation, refuge and transport. Newham Police also operates a crisis support service has a Community Safety Unit based at Plaistow Police Station.

The police have a duty to:

• Respond as quickly as possible to the victim’s call.
• Ensure the safety of the woman and children.
• Assess the situation and arrest the man where there is due cause.
• Arrange for medical treatment if needed.
• Refer the woman to a safe refuge if she so chooses
• Act positively and sensitively to the woman’s requests.
• Accompany the woman to collect her belongings if it is feared a breach of the peace will be committed; however, the police cannot force entry or insist that property is handed over unless specifically ordered by the County Court.
• Inform the woman whether the man has been charged or released, as well as keep a record of all incidents of domestic violence against the woman.

Police powers under the law

The police have the same powers to deal with domestic violence under common law, the Offences Against the Person Act 1861 or the Police and Criminal Evidence Act 1984, as they do in any other criminal assault or offence. Arrestable offences for which the police can take action include:

• Assault occasioning actual bodily harm (ABH)
  (Offences Against the Person Act 1861: S.47)
  Assault leading to any injury which interferes with health and comfort. The type of injury is usually that of where a cut or bruise is inflicted.
• Unlawful wounding or inflicting grievous bodily harm (GBH)
  (Offences Against the Person Act l86l: S.18)
  GBH occurs when serious harm is caused or intended, this type of injury is of a more serious nature, such as a deep cut requiring many stitches or serious psychiatric injury. This offence requires evidence that the assailant intended to cause serious injury.
• Malicious wounding
  (Offences Against the Person Act l86l: S.20)
  This offence is similar to grievous bodily harm, but in this case it must be proven that the assailant was aware that the act of assault would have resulted in a serious injury, e.g. stabbing a victim with a kitchen knife in the stomach.
• Rape, attempted rape or indecent assault
• Attempted murder
• Threats to kill
• Criminal damage and public order offences.

Arrests can also be made to prevent further injury or to protect ‘a vulnerable person or child’. The police can also arrest someone who has broken bail conditions or an injunction with associated power of arrest or they can arrest for a breach of the peace where there is no power of arrest.

Common assault is not an arrestable offence under the law and is the least serious of all criminal assault offences, but it is still an offence for which the person can be prosecuted. This can involve a range of violence such as shoving, slapping and hitting without causing injury, pushing and threats of violence. While police cannot arrest for common assault, in practice they can arrest for ABH if there is sufficient evidence under the law (e.g. bruising) even though this may be downgraded later to common assault in the charging process.

The Protection from Harassment Act 1997

This Act introduces new measures for protection under both the criminal and civil law, and also provides a new link between them. The provisions include two new criminal offences: the offence of criminal harassment (under Section 2, a summary offence, tried in the Magistrates Court) and a more serious offence involving fear of violence (under Section 4, triable either as a summary offence, or as an indictable offence in the crown court). If convicted of either of these offences, there is an additional measure for protection: a restraining order can also be granted by the court, prohibiting the offender from further similar conduct. Under the civil law there is also a new injunction for prevention of harassment for those who are not eligible under the Family Law Act 1996 (see below under Help available under the civil law for further discussion of the usefulness of this).

Under Section 2, (the offence of criminal harassment) the offence is complete when the suspect pursues a course of conduct i.e. two or more offences against the victim. and which he knows, or ought to know, amounts to harassment of the other, if any ‘reasonable person’ in possession of the same information would regard such conduct as harassment. The term ‘reasonable person’ may be problematic in practice but the aim of the legislation is to shift the emphasis from the subjective harmful intent of the alleged offender, which is often difficult to prove, to what actually happens and its effect on the victim.

Under Section 4, (the offence involving fear of violence) anyone whose course of conduct causes another to fear, on at least two occasions, that violence will be used against them is guilty of an offence ‘if he knows, or ought to know, that his course of conduct will cause the other so to fear on each of those occasions’. Although there are already powers under existing criminal law to deal with fear of physical violence, this new offence may be useful as it will allow the courts to deal with serious stalking without having to wait until psychological or bodily harm is caused.

The police can arrest without warrant anyone whom they suspect of committing either of these offences and the separate incidents do not have to be the same kind each time. For example, shouting obscenities outside a woman’s house on a Saturday, followed by a broken window the next Friday could constitute a related ‘course of conduct’ even though the conduct is different each time. Both could be prosecuted under existing legislation (for example as public order or criminal damage offences) but would also constitute an offence under Section 2 of the Protection from Harassment Act 1997.

Victims should not wait until two separate incidents have occurred before reporting the matter to the Police. If only one incident happens, victims should report the matter to Police, and the suspect will receive a warning from Police that should he commit a further offence he will be liable to arrest. This may help to re-assure victims and prevent for incidents happening.

The police and the Crown Prosecution Service (CPS) would have to decide whether to take forward one offence or two. The advantage of going for the single offence of harassment is that it allows the court to hear the entire catalogue of incidents, the evidence for which may be weak individually but strong when put together.

Gathering evidence

It is important that the woman is advised to find safe ways to keep a record of all the incidents of abuse, including reporting them to her GP, hospital, police and advice worker. Very often a woman will not leave an abusive partner immediately, and therefore it is essential that a record is kept of her injuries and the circumstances of each assault. This can be used later as evidence against the abusive partner. See the previous section for detailed information on "enhanced evidence collection", which should be used by all agencies.

Taking action to prosecute

If the perpetrator is taken before a Magistrate within 24 hours, then the court will either remand him in custody or release him on bail. This will depend on the seriousness of the charge and other factors, as well as police recommendations. If bail is given, bail conditions can be set, which can include staying away from her or having to live at a certain address, e.g. a bail hostel.

If her partner or abuser is arrested and charged, then the police will pass the case to the Crown Prosecution Service (CPS) who will decide whether there is enough evidence for the case to go forward. This will partly depend on her willingness to give evidence as a witness for the prosecution. Unless there is other strong police evidence, or other witnesses, it is likely that she will have to go to court if the case is to be pursued, unless, of course, he pleads guilty. Under Section 80 of the Police and Criminal Evidence Act l984, the courts have the power to compel or make a wife give evidence against her husband, although this provision is rarely used.

If she does not wish to go to court as a witness, she will be asked to make a statement to say why. If she is worried that she may be intimidated or threatened by him, his family or friends before, at or after the court hearing, she should tell the police about this as they may be able to help.

If the woman does not want to press charges

Women should not be pressurised to press charges in a crisis situation. Women should be given the time and space to decide whether they want to give evidence in court. Some women may want the police simply to stop a particular assault and may wish to continue the relationship and not have him "put away". If a woman just wants the man warned about his behaviour and does not want him arrested, depending on the circumstances it might be possible for the police to issue a formal caution against him. Cautioning may be a good way of getting the message over to the man that his behaviour is unacceptable, provided it is not used when the woman is at serious risk. It also has the advantage of creating a criminal record, because if he accepts a caution, he admits his guilt.

If the case is prosecuted, it may be several weeks or months before the full case is heard. Even though the charge is likely to be for a specific incident, it is important in making any statement to the police to include any information about previous attacks or incidents where either she or her children have been hurt or threatened. This will not be used in deciding whether her abuser is guilty of the specific offence, but it may help her safety in the future if it is considered by the court at the sentencing stage.

Going to court

The case may be heard in the Magistrates Court or the Crown Court (a higher court with a judge presiding), depending on the severity of the charge. Her local police should keep her informed of the progress of the case, and she may be supported at court by a Community Safety Officer, or a representative from the Court Witness Service. If she is staying in a refuge or is in contact with a local specialist domestic violence agency, they may also be able to offer support.

The court will hear the case from the prosecution, to which she will be called as a witness, and then, if her abuser pleads not guilty, she will be cross-examined by the defence. Once the court has heard the evidence, if the defendant is found guilty, they will usually adjourn for further reports from the Probation Service, before sentencing.

Unless the offence is very serious, the court will usually give a fine or suspended sentence for a first offence. If it is a serious offence, then a custodial sentence or a probation order may be given. If the abuser is her current partner, unless a custodial sentence is given, he is likely to be able to return home. If she does not want this to happen because she will still be at risk, she will need to apply for a protection order under civil law (see next section) ideally before the final court hearing under the criminal law.

If he continues to harass or threaten her or her family, she should inform the police immediately and make another complaint. Even if the individual incidents are not serious, the police can take action, if a course of conduct is being carried out where she is being harassed or put in fear of violence. Even if her abuser no longer lives with her, he may continue to hound her, either in person, by letter, by telephone or through others. Under the Protection from Harassment Act 1997, her partner or ex-partner can be arrested and prosecuted for this behaviour.

The criminal law can offer some protection, but its main purpose is to deal with the offender. Many aspects of controlling and abusive behaviour cannot be dealt with under the criminal law. If an abused woman does not feel safe to give evidence as a criminal witness, or the case is not pursued, or prosecution is unlikely to result in a custodial sentence or safe outcome, she may wish to apply for an injunction or a personal protection order under the civil law.

Ethnic minority women and police response

Many women experiencing domestic violence are reluctant to contact the police for a variety of reasons. However, for ethnic minority women contacting the police about an abusive partner may be especially difficult. This could be due to:

• Not being able to speak English.
• Fearing that some police officers will over-react against the man because of racism.
• Women who have not yet been granted indefinite leave to remain in Britain have the fear of being investigated and the possibility of losing their own right of residence. Even if women do have leave to remain, they may not have recourse to public funds.
• A woman may feel that if she calls the police for assistance she will lose her family, the respect of her community and, in some cases, the man may be deported.

Complaints against police action

If a person wishes to make a complaint against police action they should go to any police station and ask to speak to an inspector on duty, informing the person at reception that they wish to make a complaint. They can also complain to the Police Complaints Commission.

10 Great George Street
London W1P 3AE
Tel: 020 7273 6450

Women may need help and support in doing this.

Financial compensation for assault

Women can sue for compensation for assault and battery and rape. The Magistrate Court can order compensation when the man has been charged and convicted. This is usually in the region of £100 — £200.

Women and children who have been physically or sexually abused can also claim compensation from the Criminal Injuries Compensation Scheme. To apply the woman or child must:

• Have proof that they no longer live with the abuser (a report from the police or a doctor will be necessary).
• Have reported the assault to the police and have had it recorded by the police as a crime, even if the man has not been charged or convicted.
• Have sustained personal injuries directly attributed to the crime or violence.

When assessing the amount of compensation the board will consider:

• The nature and severity of the injuries.
• The amount of earnings lost as a result of the injuries.
• Special expenses incurred because of the incident.

Compensation cannot be paid unless the board is satisfied that the amount due after social security benefits would not be less than £500. Applying for compensation can be a long and complicated procedure and a solicitor or Victim Support should be contacted for advice. If a solicitor is used, even if legal aid is granted, the costs will be deducted out of any compensation awarded.

Domestic Violence Crisis Intervention Team Service Partnership Project Community Safety Unit

Introduction

The Crime and Disorder Act (CDA) 1998 required the Local Authority and Police to be jointly responsible for tackling crime in the borough.

As a crime, domestic violence is a complex social problem that requires a range of services to provide the appropriate and adequate level of support to its victims.

Unlike stranger assaults, the perpetrator of domestic violence and the victim shares a strong family and emotional bond with each other.

From surveys carried out, it is estimated that on average women suffer 35+ incidences of abuse before they attempt to look for help. This is likely to be an under estimation.

Reporting to the Police and continuing with criminal prosecutions are usually last resort actions, taken by victims when the abuse has become increasingly violent and dangerous.

This crisis point when a woman decides to “do something” to stop the domestic violence is also the point of highest risk of increased physical violence.

Newham’s Police Community Safety Unity (CSU) as one of the highest reporting rates of domestic violence.

Safety Partnership Against Domestic Violence

The overall aims of the Service Partnership project are:

To help reduce repeat victimisation by:

• Bringing all the agencies in the community together to provide a more
co-ordinated response to victims from the first point of Police contact.

• To provide a network of support services to victims of domestic violence during the highly emotional, stressful and often more violent period after the Police have been called and when applicable, where prosecutions of the perpetrator is in progress.

The Operational Outline of the Service Partnership Project

Newham’s Community Safety Unit receives between 80-100 calls for help each week that are domestic violence related.