Transcript Protecting victims of domestic violence are we getting the

Protecting victims of domestic
violence are we getting the
balance right?
Claire Bessant
Principal Lecturer, Northumbria University
Defining domestic violence
Cross-government: any incident of threatening behaviour,
violence or abuse (psychological, physical, sexual, financial or
emotional) between adults who are or have been intimate
partners or family members, regardless of gender or sexuality
 Government’s gendered definition: ‘any act of gender-based
violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or in private life.’
 Yemshaw v London Borough of Hounslow [2011] UKSC 3
‘physical violence, threatening or intimidating behaviour and any
other form of abuse which … may give rise to the risk of harm’
 See also Welsh Assembly Government, Tackling Domestic
Abuse:The All Wales National Strategy , 2005

Obligations to Act
Council of Europe, Recommendation Rec
(2002) 5 of the Committee of Ministers to
member States on the protection of women
against violence adopted on 30 April 2002
 UN Declaration on the Elimination of
Violence against Women: UN General
Assembly Resolution 48/104 of 20 December
1993
 ECHR Articles 2, 3 and 8. See Opuz v
Turkey[2009] ECHR 870; Kontrovia v Slovakia
App 7510/04 and Bevacqua and S v Bulgaria
(app no 71127/01)
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Notions of Privacy
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A right to be let alone
The control of one’s own information
Freedom from interference with personal space
Autonomy to engage in one’s own thoughts, decisions
and actions
Opposing camps –
◦ Women’s family and spatial privacy should be respected.
They should be afforded greater decisional privacy
◦ Domestic abuse impairs victim’s decision making ability
and justifies state intervention. Privacy permits and
legitimises violence
Balancing rights to privacy and protection
Article 3 is an absolute right. Article 8 is a qualified
right.
 Where domestic violence reaches the necessary
level of severity to engage Article 3, breach of Article
3 cannot be justified on the basis that it is necessary
to avoid interference with the Article 8 rights of
either perpetrator of victim
 Where the victim’s Article 8’s right to protection of
bodily integrity is engaged it needs to be balanced
against the rights of victim and perpetrator to home,
family and private life

The law
Criminal law
 Civil law – primarily Family Law Act 1996
remedies; NMOs and OOs
 Problems with existing law:
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◦ High attrition rate in criminal justice system
◦ Protection offered through bail conditions
questionable
◦ Without notice OOs almost impossible to obtain,
court’s often fail to provide effective remedies to
victims of non-physical abuse
◦ Victims must apply for NMOs and OOS
Go notices and go orders
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Domestic violence protection notice:
◦ written notice personally served by police on a
perpetrator. Provisions similar to NMOs and OOS.
◦ Need reasonable grounds to believe P has been
violent to or threatened violence to V,V is an
associated person and the notice is necessary to
protect V from violence or threat of it
◦ V’s wishes considered, not determinative
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Domestic violence protection order:
◦ Civil order made by magistrates. Provisions and
grounds similar to notice
The disclosure scheme pilots
Police will test two different processes for
disclosing information which will enable a partner
(A) of a previously violent individual (B) to make
informed choices about whether they take
forward their relationship with B
 A right to ask scheme – A or a third party (C)
ask the police to disclose information about B
 A right to know scheme – as a result of having
information which indicates a risk to A’s safety
the police disclose information to A
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Conclusion
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The state has an obligation to act to prevent
domestic violence/violence against women and
children
The current law is not 100% effective
Go notices and orders could be a useful additional
remedy. Short term affect on private, family and home
life. Guidance emphasises need to consider respective
parties’ rights
Disclosure scheme – the key questions are whether
the aim to prevent violence is achievable and if not
whether interferences with private and family life can
be justified