Domestic Violence, Crime and Victims Act 2004
Part of a series on Violence
Issues Acid throwing · Breast ironing
Bride-buying · Bride burning
Domestic violence · Dowry death
Female genital mutilation
(Gishiri cutting · Infibulation)
Foot binding · Forced prostitution
Murder of pregnant women
Rape · Sati · Sexual slavery
Violence against prostitutes
Category Violence against women
The Domestic Violence, Crime and Victims Act 2004 is a criminal justice Act concentrating 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.
- 1 Origins
- 2 Reforms to police and court procedure
- 3 Trial by jury of sample counts only
- 4 Causing or allowing the death of a child or vulnerable adult
- 5 Bailiff powers
- 6 References
- 7 External links
The Act's provisions originated in several reports:
- The Home Office White Paper Justice for All (Cm 5563) - many of whose recommendations were implemented in the Criminal Justice Act 2003
- The Home Office consultation paper 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 report Children: their non-accidental death or serious injury (criminal trials) - a consultative report (LC279), published on 15 April 2003
- The Law Commission report: [The Effective Prosecution of Multiple Offending] (LC277), published in October 2002
- The Law Commission report: Double Jeopardy and Prosecution Appeals (LC267), published on the 6 March 2001
Reforms to police and court procedure
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 co-habiting couples on an equal footing with married couples. Former co-habitants are also included.
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.
The Act deemed common assault 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, 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. 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."
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 Criminal Justice Act 2003).
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 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
- 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.
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.
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". This had been described in the eighteenth century by William Blackstone, who wrote in Book 4, Chapter 16 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; quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? 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.
- ^ a b c The Guardian, 2 June 2009, The poorest need shielding from bailiffs
- ^ Domestic Violence, Crime and Victims Act 2004, s.1
- ^ Domestic Violence, Crime and Victims Act 2004, s.12
- ^ Domestic Violence, Crime and Victims Act 2004, s.10
- ^ Police and Criminal Evidence Act 1984, s.24(5)(c)(i)
- ^ s.11
- ^ Domestic Violence, Crime and Victims Act 2004, s.22
- ^ Domestic Violence, Crime and Victims Act 2004, s.17
- ^ (1986) 82 Cr App R 5
- ^  2 QB 497
- ^ See Origins section, Law Commission report 282, paragraph 1.2
- ^ Domestic Violence, Crime and Victims Act 2004, s.5
- ^ Criminal Justice Act 1994, s.35
- ^ Criminal Justice and Public Order 1994, s.38(3), see also Murray v UK (European Court of Human Rights)  22 EHRR 29
- ^ A submission that the prosecution have shown no, or fundamentally inadequate, evidence of the defendant's guilt on all elements of the offence; thus securing a judge-directed acquittal. This can occur at the end of the prosecution case before the defendant is under pressure to give evidence
- ^ Blackstone's Commentaries - Book the Fourth - Chapter the Sixteenth : Of Offenses Against the Habitations of Individuals
- ^ "Tully" is a common abbreviation for Marcus Tullius Cicero.
- ^ What more sacred, what more strongly guarded by every holy feeling, than a man's own home?
- WikiCrimeLine: Domestic Violence, Crime and Victims Act 2004: Commentary and links
- 65-yr-old mother gets justice under Domestic Violence Act
- Official text of the Domestic Violence, Crime and Victims Act 2004 as amended and in force today within the United Kingdom, from the UK Statute Law Database
- Official text of the Domestic Violence, Crime and Victims Act 2004 as originally enacted within the United Kingdom, from the UK Statute Law Database
- Official text of the Domestic Violence, Crime and Victims Act 2004 Explanatory Notes, from the UK Statute Law Database
United Kingdom legislation Pre-Parliamentary legislation Acts of Parliament by states preceding
the Kingdom of Great Britain
Acts of the Parliament of England to 1483 · 1485–1601 · 1603–1641 · Interregnum (1642–1660) · 1660–1699 · 1700–1706
Acts of the Parliament of Scotland
Acts of the Parliament of Ireland to 1700 · 1701–1800
Acts of Parliament of the
Kingdom of Great Britain
1707–1719 · 1720–1739 · 1740–1759 · 1760–1779 · 1780–1800
Acts of Parliament of the United Kingdom of
Great Britain and Ireland and the United
Kingdom of Great Britain and Northern Ireland
Church of England Measures Legislation of devolved institutions Secondary legislation
Wikimedia Foundation. 2010.
Look at other dictionaries:
Domestic violence — Domestic disturbance redirects here. For the 2001 film, see Domestic Disturbance. Domestic violence Classification and external resources eMedicine article/805546 MeSH … Wikipedia
Domestic violence in the United States — Part of a series on Violence against women … Wikipedia
Outline of domestic violence — The following outline is provided as an overview of and topical guide to domestic violence: Domestic violence – pattern of abusive behaviors by one or both partners in an intimate relationship, such as marriage, dating, family, or cohabitation.… … Wikipedia
Islam and domestic violence — This article is about Islam and domestic violence. For other related topics, see Outline of domestic violence. Part of a series on Vi … Wikipedia
Epidemiology of domestic violence — Domestic violence occurs across the world, in various cultures, and affects people across society, irrespective of economic status. In the United States, according to the Bureau of Justice Statistics in 1995 women reported a six times… … Wikipedia
Law, Crime, and Law Enforcement — ▪ 2006 Introduction Trials of former heads of state, U.S. Supreme Court rulings on eminent domain and the death penalty, and high profile cases against former executives of large corporations were leading legal and criminal issues in 2005.… … Universalium
Crime in India — Crime is present in various forms in India. Organized crime include drug trafficking, gunrunning, money laundering, extortion, murder for hire, fraud, human trafficking and poaching. Many criminal operations engage in black marketeering,… … Wikipedia
Crime statistics — attempt to provide statistical measures of the crime in societies. Given that crime is usually secretive by nature, measurements of it are likely to be inaccurate. Several methods for measuring crime exist, including household surveys, hospital… … Wikipedia
crime — crimeless, adj. crimelessness, n. /kruym/, n. 1. an action or an instance of negligence that is deemed injurious to the public welfare or morals or to the interests of the state and that is legally prohibited. 2. criminal activity and those… … Universalium
Violence — For other uses, see Violence (disambiguation). U.N. rates of physical violence resulting in death, per 100,000 inhabitants by country in 2002. … Wikipedia