Chapter 6 of the Sentencing Bill introduces the duty on the court to state if ‘in its view the offence involved domestic abuse’.
This clear labelling will obviously be useful for police records. So far so good, but so what?
At clause 4 the same Bill goes to the trouble of clarifying that the sentencing purpose of protecting the public must include ‘victims of crime’. Yet, within the very same Bill, this instruction is forgotten. ‘Domestic abuse’ is to be identified and announced, but without any consequence for the victim.
The unique nature of this type of offence is that it necessarily has a direct victim, and potential future victims. So, the consequence should surely be a direction for the court to consider what protection is necessary whenever the announcement is made. Make it meaningful.
This can be done quite simply by creating a part (b) to state that the court must consider a protective order and give reasons if such an order is not made. At the present time this would either be a restraining order or domestic abuse protection order. The terms of the order relate to the individual case, e.g. not to molest the victim, to exclude the perpetrator from certain areas, to prevent contact with the victim.
This is a presumption and not a restriction or interference with existing judicial discretion. It merely ensures that the existing discretion is overtly exercised every time. This brings openness and transparency so that both prosecution and defence know that they will be expected to make representations about whether an order is justified or not, and the potential terms within it.
It would need to bring with it a right for the victim to be informed about the possibilities within such orders. This would be an additional and important duty within the Victim’s Code. Importantly, it would remove the postcode lottery of whether this explanation happens effectively or not.
The most common presumptive order is compensation, which must be ordered whenever it is available, e.g. violence is proved. Reasons must be given if the order is not made. This works effectively every day in busy courts without adding delay. All agencies are on notice that compensation must be considered. This begins with the police officer explaining the right to compensation to the victim. Then the file creator ensures that details of injuries are available for both the prosecutor and defence. Everyone is prepared and there is consistency of approach for all victims. This clear requirement avoids the need for adjournments for further enquiries.
A statutory presumption even applies to football violence. A football banning order must be made unless it would be unjust to do so, with reasons given if the order is not made. It is bewildering that the proposed clear announcement in open court of ‘domestic abuse’ does not generate a similar responsibility on the court to openly consider a protective order in every case.
There are a multitude of reasons why an order may not be appropriate, e.g. a civil non-molestation order is already in place, the behaviour does not justify an order, or importantly, the victim has been properly advised and simply does not want such an order. There are loud and justified cries to reduce domestic abuse. It is time for legislation to respond and there is still time for the Bill to do just that.
