The Domestic Violence, Crime and Victims Act 2004 (c. 28) is an Act of the

Parliament of the United Kingdom The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace ...

. It is concerned with criminal justice and concentrates upon legal protection and assistance to victims of crime, particularly

domestic violence Domestic violence is violence that occurs in a domestic setting, such as in a marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes r ...

. It also expands the provision for trials without a jury, brings in new rules for trials for causing the death of a child or vulnerable adult, and permits

bailiff A bailiff is a manager, overseer or custodian – a legal officer to whom some degree of authority or jurisdiction is given. There are different kinds, and their offices and scope of duties vary. Another official sometimes referred to as a '' ...

s to use force to enter homes.

Origins

* The Home Office White Pape
Justice for All
(Cm 5563) - many of whose recommendations were implemented in the

Criminal Justice Act 2003 The Criminal Justice Act 2003 (c. 44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland a ...

. * The Home Office consultation pape
Safety and Justice: the Government's Proposals on Domestic Violence
(Cm 5847), published in June 2003. * The Home Office policy leaflet "A Better Deal for Victims and Witnesses", published on 21 November 2002. * National Society for the Protection of Children ("NSPCC") "Which of you did it?" Working Group Report, published in Autumn 2003. * The Law Commission report
Children: their non-accidental death or serious injury (criminal trials)
(LC282), published on 16 September 2003. * The Law Commission consultative repor
Children: their non-accidental death or serious injury (criminal trials) - a consultative report
(LC279), published on 15 April 2003. * The Law Commission report: he Effective Prosecution of Multiple Offending(LC277), published in October 2002. * The Law Commission report
Double Jeopardy and Prosecution Appeals
(LC267), published in March 2001.

Reforms to police and court procedure

Non-molestation orders

Non-molestation orders under the Family Law Act 1996 were amended to provide a criminal sanction for non-compliance, with a maximum sentence of 5 years' imprisonment. The circumstances in which such orders could be imposed was extended to include same-sex couples and cohabiting couples on an equal footing with married couples. Former cohabitants are also included.

Restraining orders

Restraining orders (preventing the recipient from doing anything specified in the order) can be imposed upon acquitted defendants. They are imposed if the court "considers it necessary to do so to protect a person from harassment by the defendant". The Court of Appeal in allowing an appeal against conviction may also remit the matter to the Crown Court to consider a restraining order in respect of the otherwise successful appellant.

Common assault

The Act deemed

common assault Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. In England and Wales, the penalty and mode of trial for this offence is pro ...

an arrestable offence. The practical effect of this change was that the police could arrest a suspect at the scene without a warrant, rather than potentially be compelled to leave the suspected assailant with his or her alleged victim. Previously the police would have to allege

assault occasioning actual bodily harm Assault occasioning actual bodily harm (often abbreviated to Assault OABH, AOABH or simply ABH) is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and t ...

, which was arrestable, in order to detain the suspected assailant in borderline cases. However, the concept of "arrestable offence" was abolished on 1 January 2006. , police can effect an arrest, even in the case of suspected common assault, in order "to prevent the person in question causing physical injury to himself or any other person." The Act specified common assault as an alternative verdict to a count on an

aggravated assault In the terminology of law, an assault is the act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may result ...

in the

Crown Court The Crown Court is the criminal trial court, court of first instance in England and Wales responsible for hearing all indictable offences, some Hybrid offence, either way offences and appeals of the decisions of magistrates' courts. It is ...

, though it is not itself an

indictable offence In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...

Fitness to plead

Judges, not a specially empanelled jury, now decide if a defendant is fit to plead.". The regime for dealing with defendants who are unfit to plead or not guilty by reason of insanity (that is, committed the physical acts constituting the offence but without the sane intent) has also been modified. The court, not the Home Secretary, makes the assessment (requiring medical evidence to do so) whether the defendant should be committed to a psychiatric hospital.

Trial by jury of sample counts only

Trials with a substantial number of charges can now be split into two phases: trial by jury of "specimen counts" and judge-only trial of the remaining counts. This further expands the circumstances in which trials can be heard without a jury (see the

). The prosecution must satisfy the court that three conditions are met: * given the number of counts, a trial by jury involving all of them would be impracticable * each count or group of counts to be tried by a jury can be regarded as a sample of counts for judge-only trial * it is in the interests of justice The judge should take into account any ways that jury trial can be made easier, but no such measure should result in a trial where the defendant faces a lesser sentence than would be available with the new measures.

Causing or allowing the death of a child or vulnerable adult

Previous difficulties with the law

An intractable legal problem had arisen in relation to cases where a child or vulnerable adult cared for by two people dies as a result of ill-treatment. It is known that at least one of two people is responsible, but not which. This problem had been analysed in a number of cases. The

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

in ''Lane v Lane'' held that neither person could be convicted, nor the trial proceed past the end of the prosecution case, because there was no evidence specifically pointing to a certain defendant. Lord Goddard earlier commented in ''Regina v Abbott''

"Probably one or other must have committed it, but there was not evidence which, and although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law maintained that the prosecution should prove its case."

The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder". The Act deals with the problem in two ways: firstly by creating an offence of "causing or allowing the death of a child or vulnerable adult", and secondly by amending the rules of court procedure to require joint defendants to give their account of events in the witness box, effectively forcing them to incriminate the other if appropriate.

The new offence

The offence of "causing or allowing the death of a child or vulnerable adult", now referred to as the "new offence", is committed under section 5 of the Act if the following four conditions apply: * A child or vulnerable adult dies as a result of an unlawful act of a person in the "same household" * The defendant was also member of the same household, with frequent contact with the victim, and present at the time of the unlawful act * There was a risk of serious physical harm to the victim at the time * Either: ** The defendant did the unlawful act (that is, directly caused the death), or ** Was aware of the risk (or ought to have been), didn't take reasonable steps to do anything about it, and foresaw the circumstances which led up to the unlawful act causing death Therefore if it can be established that a child or vulnerable adult died as a result of an unlawful act, it need not be proved which of the two responsible members of the household either caused the death or allowed it to happen. If there was no obvious history of violence, or any reason to suspect it, then the other members of the household would not be guilty of this offence, even in clear cases of homicide. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse.

New procedure

Court procedure is amended to restrict the circumstances in which the trial can be stopped at the end of the prosecution case and before the defence case. The ambit of the " adverse inference" (right of the jury to make assumptions about any part of the case, including the guilt of the defendant, based upon his or her failure to answer any question put in court) is extended to include an inference on a joint charge of homicide (murder and manslaughter) and the new offence; this means that if a person is charged with either (or both) homicide offences and this new offence, then silence in the witness box can imply guilt of homicide as well as the new offence. This is subject to the usual safeguard that a person cannot be convicted solely upon the basis of their silence. The point at which a "no case to answer" submission (see definition) can be made has in certain circumstances been moved to the end of the whole case, not just the prosecution. Joint charges of homicide and the new offence can only be dismissed at the end of the whole case (if the new offence has survived past that stage as well). The new offence will survive the "no case to answer" test as long as the fundamentals of the offence are demonstrated - the prosecution do not have to show whether the defendant caused or allowed the death to happen. The defendant will be under pressure to give evidence about what occurred - not to do so would result in the adverse inference being drawn.

Criticism

A number of issues have been pointed out by legal scholars with the current drafting. David Ormerod, writing in the criminal law textbook ''Smith and Hogan'', notes that the Act deliberately does not define what counts as a "household". Additionally, the Act does not adequately cover some classes of carers who do not live in a household residence but have regular contact—domestic nannies, for instance. The law also leaves unclear whether one carer is legally responsible for not taking steps to protect a vulnerable victim from the risky behaviour of another of his or her carers.

Bailiff powers

The Act permits

s to use force to enter homes, overturning a centuries-old doctrine, confirmed by ''

Semayne's case ''Semayne's Case'' (January 1, 1604) 5 Coke Rep. 91, is an English common law case reported by Sir Edward Coke, who was then the Attorney General of England. In the United States, it is recognized as establishing the " knock-and-announce" rule. ...

'' (1604), that " an Englishman's home is his castle".''

The Guardian ''The Guardian'' is a British daily newspaper. It was founded in Manchester in 1821 as ''The Manchester Guardian'' and changed its name in 1959, followed by a move to London. Along with its sister paper, ''The Guardian Weekly'', ''The Guardi ...

'', 2 June 2009
The poorest need shielding from bailiffs
/ref> This had been described in the eighteenth century by

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...

, who wrote in Book 4, Chapter 16Blackstone's Commentaries – Book the Fourth – Chapter the Sixteenth : Of Offenses Against the Habitations of Individuals
of his ''

Commentaries on the Laws of England The ''Commentaries on the Laws of England'' (commonly, but informally known as ''Blackstone's Commentaries'') are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarend ...

'': In 2009 charities providing advice to debtors said they were seeing bailiffs threatening to break in unless the debtor paid the full fine immediately, as well court and bailiff costs. Previously, charities had been able to advise debtors that bailiffs did not have the right to force entry, and the fine could be referred back to the courts and affordable payment schedules worked out.

Section 60 - Commencement

References

External links

65-yr-old mother gets justice under Domestic Violence Act

UK Legislation

* {{DEFAULTSORT:Domestic Violence, Crime And Victims Act 2004 United Kingdom Acts of Parliament 2004 Domestic violence