Domestic violence is serious and should be severely dealt with by the criminal law. There is no offence of domestic violence as such; instead the criminal law responds to it with a number of different offences which are examined in this article, as is the issue of how a prosecution for domestic violence is facilitated. The punishments and orders available to deal with domestic violence are also examined

Parsons, Simon

English

Solent Electronic Archive

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criminallawandjustice.co.uk
Domestic Violence: he 
Criminal Law Response
Simon Parsons examines the law relating to domestic 
violence and calls for simpliication
D
omestic violence is serious and should be severely 
dealt with by the criminal law. here is no ofence of 
domestic violence as such; instead the criminal law 
responds to it with a number of diferent ofences which will be 
examined in this article, as will the issue of how a prosecution 
for domestic violence is facilitated. he punishments and orders 
available to deal with domestic violence will also be examined. 
here is a legal deinition of domestic violence in the 
Legal Aid, Sentencing and Punishment of Ofenders Act 
2012 (LASPO): “‘[D]omestic violence’ means any incident 
of threatening behaviour, violence or abuse (whether 
psychological, physical, sexual, inancial or emotional) between 
individuals who are associated with each other.” (Schedule 1, 
Pt.1, para.12(9))
his deinition to a large extent mirrors the non-legal 
deinition of domestic violence that was used by the 
Government until March 31, 2013, when the non-legal 
deinition was changed so that “domestic violence and abuse” is 
now deined as follows: “Any incident or pattern of incidents of 
controlling, coercive or threatening behaviour, violence or abuse 
between those aged 16 or over who are or have been intimate 
partners or family members, regardless of gender or sexuality. 
his can encompass, but is not limited to, the following types of 
abuse: psychological, physical, sexual, inancial and emotional. 
(www.homeoice.gov.uk/crime/violence-against-women-girls/
domestic-violence) 
his new deinition, which is not a legal deinition, includes 
so called “honour” based violence, female genital mutilation 
and forced marriage, and is clear that victims are not conined 
to one gender or ethnic group. It also makes clear that domestic 
violence is not limited to physical contact but also includes 
other forms of abuse, including psychological and emotional 
abuse. his new deinition provides welcome clarity and relects 
the fact that young people are just as likely to sufer domestic 
abuse as any other age group. he deinition in LASPO will 
need to be changed to relect this clarity. 
Domestic Violence Ofences
he new deinition has to be wide because domestic violence 
takes many forms. To deal with it, the criminal law provides a 
variety of ofences that can be prosecuted. he law is complex 
but, to aid prosecutors, the CPS has produced an aide-memoire, 
reproduced in the box on p.291. 
In addition, there are now two speciic ofences of stalking 
which have been added to the Protection from Harassment 
Act 1997 (PHA) by the Protection of Freedoms Act 2012. 
he irst is the basic ofence of “stalking” (PHA, s.2A) and 
the second an aggravated ofence of “stalking involving fear of 
violence or serious alarm or distress” (PHA, s.4A). he former 
ofence could be used in response to excessive contact whilst 
the latter could be a response to menacing telephone calls, text 
messages or letters. So there is an array of ofences that can be 
used to prosecute domestic violence, but it has to be so because 
of the large number of behaviours which can count as domestic 
violence. It is not feasible to deine a domestic violence ofence, 
or even ofences, which cover all of this conduct. Perhaps what 
is more important is how a prosecution involving domestic 
violence is facilitated and what orders are available after a 
conviction or indeed an acquittal.
How is a Domestic Violence Prosecution Facilitated?
Given the large number of ofences that can be used to 
prosecute domestic violence, there needs to be specialization 
to facilitate the efective prosecution of these ofences. his has 
been achieved in a number ways. 
First, there is the use of Independent Domestic Violence 
Advisers (IDVAs) whose role is, among other things, to help 
victims in respect of the prosecution of domestic violence. 
here are also witness units, the aim of which is to provide a 
single point of contact for victims and witnesses, minimizing 
the stress of attending court and keeping victims and witnesses 
up to date with any news in a way that is convenient to them. 
his is especially important in respect of victims of domestic 
violence, who may be vunerable. Witness-care units are jointly 
stafed by the police and the CPS. 
Secondly, there is the Code of Practice for Victims of 
Crime. he Code dictates that all victims must be told when 
a suspect has been arrested and why an ofender received a 
particular sentence, as a matter of course. A victim’s rights 
include the right to information about the crime within 
speciied time-scales, including the right to be notiied of any 
arrest and court cases. here is also the right to an enhanced 
service in the case of vulnerable or intimidated victims, which 
includes victims of domestic violence. 
hirdly, every CPS area, including CPS Direct, has a 
co-ordinator responsible for domestic violence, and Crown 
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Prosecutors are given training in respect of domestic violence. 
his has increased the conviction rate for criminal ofences 
relating to domestic violence. 
Fourthly, there has been the roll-out of specialist domestic 
violence courts (SDVCs). SDVCs identify domestic-violence-
related cases and carry out a fast-track process. his has 
encouraged a multi-agency approach to domestic violence 
within the criminal justice process. hese specialized courts 
have increased the conviction rate of domestic violence ofences. 
In 2007-08 the CPS prosecuted 75,000 cases involving 
domestic violence against women and girls. By 2011-12 that 
number was 91,000. Over the same period, the number of 
convictions rose from 52,000 to almost 67,000. 
Fifth, there are special measures for victims and witnesses. 
hese are a series of provisions that help vulnerable and 
intimidated witnesses give their best evidence in court and help 
to relieve some of the stress associated with giving evidence. 
Special measures apply to prosecution and defence witnesses, 
but not to the defendant. Victims of domestic violence, who 
are very likely to be vulnerable and intimidated as a witness, 
can make use of these special measures. he special measures 
available to vulnerable and intimidated witnesses, with the 
agreement of the court, include: screens in the courtroom 
to prevent the witness from seeing the defendant; live links, 
allowing a witness to give evidence away from the courtroom; 
evidence in private, allowing a witness privacy by clearing 
the public gallery in cases involving sexual ofences and 
intimidation; removal of wigs and gowns by Judges and 
barristers; visually recorded statements – these allow a witness 
to use a pre-recorded video statement as their main prosecution 
evidence; intermediaries – specialists who help witnesses with 
communication diiculties; and the use of communication aids, 
eg alphabet boards (ss.23-30 of the Youth Justice and Criminal 
Evidence Act 1999). hese measures may be the diference 
between a domestic violence prosecution succeeding or failing 
because, without the victim’s evidence, the CPS is frequently 
unwilling to proceed with a prosecution. 
What Follows Conviction or Acquittal? 
he ofences that are used to prosecute domestic violence all 
have their own punishments. For example, the punishment 
for murder is life imprisonment, although most murderers 
(including those who kill through domestic violence) serve 15 
years before being eligible to apply to be released on licence, 
unless there is an aggravating feature to the murder (for 
example, the domestic violence that killed was premeditated). 
However, there is an order which is particularly useful 
in relation to domestic violence: the restraining order. A 
restraining order is a court order intended to protect victims of 
domestic violence from further harm or harassment by keeping 
the abuser away from the victim. his may involve keeping the 
abuser from the scene of the violence, which may include the 
victim’s home or place of work. It is a civil order and previously 
could only be imposed upon a defendant following their 
conviction of the basic or aggravated forms of harassment under 
the PHA. However, s.12 the Domestic Violence, Crime and 
Victims Act 2004 amended the PHA to allow for a restraining 
order to be made either when a defendant is convicted of any 
ofence (PHA, s.5) or, more controversially, when a defendant 
is acquitted of any ofence (PHA, s.5A) if the court considers 
the order is necessary to protect a person from harassment by 
the defendant. he court will have regard to the evidence it 
heard during the criminal trial when determining whether a 
restraining order is required.
However, further evidence may be required, especially 
where the defendant has been acquitted and the civil standard 
of proof is applied. Breach of a restraining order is a criminal 
ofence for which the punishment is a maximum of ive years’ 
imprisonment on indictment. (he criminal standard of proof 
is applied when there is a prosecution for the alleged breach of a 
civil order). here is a defence of reasonable excuse. 
Conclusion
he response of the law to domestic violence is complex and 
confusing, since not only is there the criminal law response 
outlined above but there is also the civil law response. 
Under the Family Law Act 1996, a person who has been 
subject to domestic violence can apply for a non-molestation 
order from a civil court in which the civil standard of proof 
applies. Breach of a non-molestation order is a criminal 
ofence for which the punishment is a maximum of ive years’ 
imprisonment on indictment. Non-molestation orders are 
similar to restraining orders in that both can be made where the 
court is satisied, to the civil standard of proof, that either the 
victim or another person requires protection from the abuser. 
he PHA also has a civil side, as, in a civil action for 
the statutory tort of harassment, there can be an award of 
damages together with a civil injunction, the violation of 
which is a criminal ofence also carrying a maximum of ive 
years’ imprisonment on indictment. In addition there is the 
anti-social behaviour order (ASBO) created by the Crime and 
Disorder Act 1998 (CDA). his order can also be used to tackle 
domestic violence. ASBOs are civil orders to protect the public 
from behaviour that causes or is likely to cause harassment, 
alarm or distress. An order contains conditions prohibiting an 
individual from carrying out speciic anti-social acts or from 
entering deined areas. he orders are not criminal sanctions 
and are not intended to punish the individual. hey are 
designed to be preventative, not punitive. 
here is the “stand-alone ASBO”, which can be obtained 
in civil proceedings under s.1 of the CDA, or the “order 
on conviction ASBO”, which can be obtained in criminal 
proceedings under s.1C of the CDA. Both are civil orders but 
a heightened civil burden of proof applies, which the House of 
Lords has stated should be equivalent to the criminal standard 
of proof (R (on the application of McCann) v. Manchester 
Crown Court [2002] UKHL 39; being civil orders, the 
protections ofered by arts.6(2) and 6(3) of the European 
Convention on Human Rights do not apply). Breach of an 
ASBO is a criminal ofence for which the punishment is a 
maximum of ive years’ imprisonment on indictment. here is a 
defence of reasonable excuse. 
he law needs to be simpliied but its complexity grows. 
For example, domestic violence protection notices and orders 
(DVPOs) are available in the West Mercia, Wiltshire and 
Greater Manchester police areas. DVPOs give victims, who 
might otherwise have had to lee their home, time to get the 
support they need. Before these orders, there was a gap in 
protection, because police could not charge the abuse for lack of 
evidence (and therefore the abuser could not be subject to bail 
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conditions or remanded in custody) and because the process 
of granting an injunction took time. DVPOs close that gap. 
hey give police and magistrates the power to protect a victim 
immediately after an attack, by stopping the abuser from 
contacting the victim or returning home for up to 28 days. 
hese orders are to be welcomed and they should be rolled 
out throughout England and Wales but they do add to the 
complexity of the law. 
Most victims of domestic violence (and many lawyers) 
ind the law’s response to domestic violence bewildering. 
he law needs to be simpliied. hat simpliication could 
be achieved by giving the jurisdiction for dealing with 
domestic violence solely to the criminal justice process. 
here is evidence that this is already happening de facto 
since the number of applications for non-molestation orders 
is reducing, as many victims of domestic violence turn irst 
to the criminal justice process. his trend may be increased 
by the reduction in the availability of civil legal aid. he 
reason for this switch is that the criminal justice process has 
specialized in response to domestic violence, in particular 
with the introduction of SDVCs. his specialization is 
lacking in the civil courts. In addition, there is a case for 
rationalizing the number of diferent orders currently 
available to deal with domestic violence so that victims have 
a better understanding of the legal process and thus know 
where to go and what to apply for. J
Author details
Associate Professor of Law, Southampton Solent University
Example of Behaviour: Neglecting, 
abandoning or ill-treating a child. 
Possible Offences: Child cruelty.
Example of Behaviour: “Honour crimes”. 
Possible Offences: Murder, aiding and 
abetting suicide.
Example of Behaviour: Female 
circumcision. 
Possible Offences: Female genital 
mutilation.
Example of Behaviour: Forcing entry into 
a house. 
Possible Offences: Using violence to 
secure entry.
Example of Behaviour: Pressuring a victim/
witness to “drop the case” or not to give 
evidence. 
Possible Offences: Witness intimidation, 
obstructing the course of justice, conspiracy 
to pervert the course of justice.
Example of Behaviour: Physical violence, 
with or without weapons, including: 
punching, slapping, pushing, kicking, head-
butting, and hair-pulling. 
Possible Offences: Common assault, 
actual/grievous bodily harm, wounding, 
attempted murder.
Example of Behaviour: Violence resulting 
in death. 
Possible Offences: Murder, manslaughter.
Example of Behaviour: Violence resulting in 
miscarriage. 
Possible Offences: Child destruction, 
procuring a miscarriage or abortion.
Example of Behaviour: Choking, strangling, 
suffocating. 
Possible Offences: Common assault, 
actual/grievous bodily harm, attempting to 
choke, strangle or suffocate.
Example of Behaviour: Spitting at a person. 
Possible Offences: Common assault.
Example of Behaviour: Threatening with 
an article used as a weapon, eg a knife, tool, 
telephone, chair. 
Possible Offences: Threats to kill, common 
assault, affray, threatening behaviour.
Example of Behaviour: Throwing articles, 
eg crockery, even if they miss their target. 
Possible Offences: Common assault, actual/
grievous bodily harm, wounding, criminal 
damage, affray, threatening behaviour.
Example of Behaviour: Tying someone up. 
Possible Offences: Common assault, actual 
bodily harm, false imprisonment.
Example of Behaviour: Threatening to kill 
someone.
Possible Offences: Threats to kill, 
harassment.
Example of Behaviour: Threats to cause 
injury. 
Possible Offences: Common assault, affray, 
threatening behaviour.
Example of Behaviour: Threats seriously to 
damage or undermine social status. 
Possible Offences: Harassment, blackmail.
Example of Behaviour: Damaging or 
destroying property or threatening to 
damage or destroy property. 
Possible Offences: Criminal damage, 
threatening to cause criminal damage, 
harassment.
Example of Behaviour: Harming or 
threatening to harm a pet. 
Possible Offences: Criminal damage, 
threatening to cause criminal damage, 
cruelty to animals, harassment.
Example of Behaviour: Locking someone 
in a room or house or preventing him or her 
from leaving. 
Possible Offences: False imprisonment, 
harassment.
Example of Behaviour: Preventing 
someone from visiting relatives or friends. 
Possible Offences: False imprisonment, 
kidnapping, harassment.
Example of Behaviour: Preventing 
someone from seeking aid, eg medical 
attention. 
Possible Offences: False imprisonment, 
actual bodily harm.
Example of Behaviour: Preventing 
someone from dressing as they choose or 
forcing them to wear particular make-up, 
jewellery and hairstyles. 
Possible Offences: Actual bodily harm, 
harassment.
Example of Behaviour: Racial abuse. 
Possible Offences: Racially aggravated 
threatening behaviour, disorderly conduct or 
harassment.
Example of Behaviour: “Outing”, eg sexual 
orientation or HIV status. 
Possible Offences: Harassment, actual 
bodily harm, blackmail.
Example of Behaviour: Enforced financial 
dependence or unreasonably depriving 
someone of money. 
Possible Offences: Harassment.
Example of Behaviour: Abuse related to 
dowry demand. 
Possible Offences: Blackmail, harassment, 
common assault, actual/grievous bodily 
harm.
Example of Behaviour: Unreasonable 
financial demands. 
Possible Offences: Blackmail, harassment.
Example of Behaviour: Forced marriage. 
Possible Offences: Kidnap, blackmail, false 
imprisonment, common assault, actual/
grievous bodily harm, rape, sexual assault.
Example of Behaviour: Enforced sexual 
activity. 
Possible Offences: Rape, indecent assault, 
harassment, living off immoral earnings.
Example of Behaviour: Persistent verbal 
abuse, eg constant unreasonable criticism. 
Possible Offences: Harassment, actual 
bodily harm.
Example of Behaviour: Breaching the 
conditions of a non-molestation order. 
Possible Offences: Breach of 
non-molestation order.
Example of Behaviour: Offensive/obscene/
menacing telephone calls, text messages or 
letters. 
Possible Offences: Improper use of public 
telecommunication systems, malicious 
communications, actual/grievous bodily 
harm, harassment.
Example of Behaviour: Excessive 
contact, eg numerous phone calls to check 
someone’s whereabouts. 
Possible Offences: Harassment, false 
imprisonment.
Example of Behaviour: Secret or enforced 
administration of drugs. 
Possible Offences: Common assault, 
actual bodily harm, grievous bodily harm, 
administering poison.” 
 
* www.cps.gov.uk/legal/d_to_g/domestic_
violence_aide-memoire/index.html
Examples of domestic violence offences
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Domestic Violence: The Criminal Law Response.

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Domestic Violence: The Criminal Law Response.

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