Act of Parliament | |
Long title | An Act to amend Part 4 of the Family Law Act 1996, the Protection from Harassment Act 1997 and the Protection from Harassment (Northern Ireland) Order 1998; to make provision about homicide; to make common assault an arrestable offence; to make provision for the payment of surcharges by offenders; to make provision about alternative verdicts; to provide for a procedure under which a jury tries only sample counts on an indictment; to make provision about findings of unfitness to plead and about persons found unfit to plead or not guilty by reason of insanity; to make provision about the execution of warrants; to make provision about the enforcement of orders imposed on conviction; to amend section 58 of the Criminal Justice Act 2003 and to amend Part 12 of that Act in relation to intermittent custody; to make provision in relation to victims of offences, witnesses of offences and others affected by offences; and to make provision about the recovery of compensation from offenders. |
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Citation | 2004 c. 28 |
Dates | |
Royal assent | 15 November 2004 |
Text of statute as originally enacted | |
Revised text of statute as amended |
The Domestic Violence, Crime and Victims Act 2004 (c. 28) is an Act of the Parliament of the United Kingdom. It is concerned with criminal justice and concentrates upon legal protection and assistance to victims of crime, particularly domestic violence. 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 bailiffs to use force to enter homes. [2]
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. [3] 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 (preventing the recipient from doing anything specified in the order) can be imposed upon acquitted defendants. [4] 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.
The Act deemed common assault an arrestable offence. [5] 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, which was arrestable, in order to detain the suspected assailant in borderline cases.[ citation needed ]
However, the concept of "arrestable offence" was abolished on 1 January 2006. As of 2007 [update] , 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." [6]
The Act specified common assault as an alternative verdict to a count on an aggravated assault in the Crown Court, though it is not itself an indictable offence. [7]
Judges, not a specially empanelled jury, now decide if a defendant is fit to plead.". [8] 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.
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. [9] This further expands the circumstances in which trials can be heard without a jury (see the Criminal Justice Act 2003).
The prosecution must satisfy the court that three conditions are met:
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.
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 in Lane v Lane [10] 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 [11]
"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". [12]
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 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 [13] if the following four conditions apply:
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.
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) [14] 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 [15] 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 [16] ) 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.
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. [17]
The Act permits bailiffs to use force to enter homes, overturning a centuries-old doctrine, confirmed by Semayne's case (1604), that "an Englishman's home is his castle". [2] This had been described in the eighteenth century by William Blackstone, who wrote in Book 4, Chapter 16 [18] of his Commentaries on the Laws of England :
And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully; [19] quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? [20] For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nusancers, and incendiaries: and to this principal it must be assigned, that a man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case.
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. [2]
The following orders have been made under this section:
An indictment is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offense is a felony; jurisdictions that do not use that concept often use that of an indictable offense, an offense that requires an indictment.
The Domestic Violence Offender Gun Ban, often called the "Lautenberg Amendment", is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacted by the 104th United States Congress in 1996, which bans access to firearms by people convicted of crimes of domestic violence. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg. Lautenberg proposed the amendment after a decision from the United States Court of Appeals for the Ninth Circuit, involving underenforcement of domestic violence laws brought under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. President Bill Clinton signed the law as part of the Omnibus Appropriations Act of 1997.
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom.
Attempted murder is a crime of attempt in various jurisdictions.
Assault occasioning grievous bodily harm is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".
In England and Wales, a magistrates' court is a lower court which hears matters relating to summary offences and some triable either-way matters. Some civil law issues are also decided here, notably family proceedings. In 2010, there were 320 magistrates' courts in England and Wales; by 2020, a decade later, 164 of those had closed. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.
The Criminal Justice Act 2003 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 and Northern Ireland. Large portions of the act were repealed and replaced by the Sentencing Act 2020.
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 provided by section 39 of the Criminal Justice Act 1988.
Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.
Harassment, alarm or distress is an element of a statutory offence in England and Wales, arising from an expression used in sections 4A and 5 of the Public Order Act 1986, which created the offence. The Act was amended in 1994.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.
In the law of England and Wales, fitness to plead is the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. The concept of fitness to plead also applies in Scots and Irish law. Its United States equivalent is competence to stand trial.
The Criminal Law Act 1977 is an act of the Parliament of the United Kingdom. Most of it only applies to England and Wales. It creates the offence of conspiracy in English law. It also created offences concerned with criminal trespass in premises, made changes to sentencing, and created an offence of falsely reporting the existence of a bomb.
In the legal jurisdiction of England and Wales, there is a long tradition of jury trial that has evolved over centuries. Under present-day practice, juries are generally summoned for criminal trials in the Crown Court where the offence is an indictable offence or an offence triable either way. All common law civil cases were tried by jury until the introduction of juryless trials in the new county courts in 1846, and thereafter the use of juries in civil cases steadily declined. Liability to be called upon for jury service is covered by the Juries Act 1974.
The Protection from Harassment Act 1997 is an Act of the Parliament of the United Kingdom. On introducing the Bill's second reading in the House of Lords, the Lord Chancellor, Lord Mackay of Clashfern, said, "The aim of this Bill is to protect the victims of harassment. It will protect all such victims whatever the source of the harassment—so-called stalking behaviour, racial harassment, or anti-social behaviour by neighbours." Home Office guidance on the Act says "The legislation was always intended to tackle stalking, but the offences were drafted to tackle any form of persistent conduct which causes another person alarm or distress."
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