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Home » Professionals » Legal Guidance » D to G » Guidance On Section 1 Domestic Violence, Crime And Victims Act 2004

Guidance On Section 1 Domestic Violence, Crime And Victims Act 2004: Breach of non-molestation orders

Introduction

At midnight 1st July 2007, Section 1 of the Domestic Violence, Crime and Victims Act 2004 ('DVCVA') comes into force. This provision amends section 42A of the Family Law Act 1996 by creating a criminal offence of breach of a civil non-molestation order obtained under section 42(2) or section 45(1) (ex parte applications) Family Law Act 1996.

This offence is triable either way with a maximum penalty on indictment of five years imprisonment, or a fine, or both. In the magistrates' court, the statutory maximum applies.

In addition, prosecutors should note that section 4 of the DVCVA also comes into force on 1st July. By amending the definition in section 62(3) Family Law Act 1996 ('FLA') of 'associated person', this provision permits a person who has not cohabitated with another but who has had "an intimate personal relationship .... which is or was of significant duration" to apply for a non-molestation order. This means that if the order is subsequently breached, an offence under section 1of the DVCVA may have been committed. It is a matter for the court to decide whether the relationship has been of 'significant duration'.

Background

The new offence of breach of a non-molestation order was introduced following concern that the civil procedure was ineffective in preventing and deterring domestic violence.

Previously if a person breached their non-molestation order, he/she could only be arrested for a civil contempt of court if a power of arrest was attached to the order. The maximum penalty for contempt is two years imprisonment.

It is important to understand the legislative intent behind these provisions. The DVCVA aims to place complainants at the heart of the criminal justice system. Accordingly, section 1 effectively gives complainants a choice on the mechanism by which a breach of a non-molestation order is dealt with. The complainant can either call the police to have the breach dealt with within the criminal jurisdiction, or they can make an application to have the person committed to custody for contempt application in the civil jurisdiction.

The two jurisdictions are exclusive and prosecutors will not be involved in civil proceedings.

Charging guidance

By the very nature of this offence, prosecutors should refer to our policy statement and guidance on prosecuting Domestic Violence and apply the principles contained therein.

The offence is committed where a person:

  • is subject to a non-molestation order; and
  • does anything prohibited by the non-molestation order; and
  • does not have a reasonable excuse.

If the non-molestation order was granted at an ex parte hearing, then an offence will only be committed if the person was aware of the existence of the order at the time he/she breached the order.

Accordingly, prosecutors must look for the following evidence when reviewing cases:

  • the existence of a non-molestation order including when it was made (see transitional arrangements below);
  • in the case of an order made ex parte "without notice", the defendant was aware of its existence. This means that where a defendant is aware of the existence of a non-molestation order but has evaded service, or made no effort to ascertain its terms, he/she may still commit a criminal offence by breaching the order's terms;
  • the terms of the order;
  • that the defendant is the person named in the order;
  • that the order was in force at the time of the alleged breach; and
  • the act(s) complained of amount to a breach of the terms of the order.

Relationship with other offences

It is likely that if there is a serious breach of a non-molestation order, then other criminal offences will have been committed by the person. These may include:

  • Harassment under the Protection from Harassment Act 1997;
  • Criminal damage;
  • Assault; and
  • Public Order.

The selection of charge/s must be governed by the principles contained within part 7 of The Code.

Defences

There is a statutory defence of 'reasonable excuse', with the burden being on the defendant to show that his/her excuse for breaching the non-molestation order was reasonable. 'Reasonable' will need to be considered on a case-by-case basis.

If the behaviour has already been dealt with by the civil courts as a contempt, then the CPS cannot bring a criminal prosecution. Prosecutors should make inquiries of police officers to ensure that this has been checked. If the defence raise this as an issue, then the prosecution will need to disprove that fact. Evidence may need to be adduced from the relevant court record. Similarly, a person cannot be dealt with for contempt of court if they have been convicted under s. 42A FLA.

The protection from 'double jeopardy' only applies on conviction, therefore if an individual has been acquitted, the complainant may still seek a committal into custody via proceedings in the family courts.

If a prosecutor decides that the Code tests are not met and a prosecution will not occur then the complainant can seek redress in the civil courts. In such instances, prosecutors should request the investigating officer to contact the complainant and inform him/her immediately that there will not be a criminal prosecution. Not only will this inform the complainant of the suspect's release but enables him/her to consider approaching the family courts to seek a civil remedy at the earliest opportunity.

Discontinuing a prosecution does not automatically lead to proceedings being started in the family courts. The complainant has to apply in order to initiate proceedings.

Public Interest Test

The following public interest factors may be of particular relevance when reviewing an offence under section 42A FLA:

  • a conviction is likely to result in a significant sentence;
  • a weapon was used or violence threatened;
  • evidence that the offence was premeditated;
  • the vulnerability of the victim including whether the victim was put in fear of personal safety, damage or disturbance;
  • the offence occurred in close proximity to children;
  • there are grounds for believing that the offending is likely to be continued or repeated; and
  • the fact the defendant has breached a court order.

The public interest in prosecuting under section 42A increases if the breach is serious, particularly if it involves the commission of another criminal offence.

Conversely, the actual behaviour that breaches the order may be relatively minor and although forbidden by the terms of the non-molestation order, it may not necessarily be criminal in itself. In such circumstances the public interest will have to be carefully considered. Prosecutors may need to consider the background, seriousness of the breach, the behaviour complained of, whether another offence was committed at the same time and the views of the victim. Bear in mind that a committal for contempt has a maximum penalty of two years imprisonment in the county court, and two months maximum in the magistrates' court.

As stated above, if charge is refused then prosecutors should request the police to notify the complainant immediately so he/she can seek civil redress if they wish to.

Another scenario that prosecutors may encounter is one of parallel civil and criminal proceedings. This may include the situation when a complainant supports a criminal prosecution for a breach as well as applying for a civil remedy. An alternative scenario is when proceedings under the Children Act 1989 are pending, or an occupation order is in force, or the breach stems from the fact that the non-molestation order merely needs amending (only a civil court can amend a non-molestation order; the criminal courts have no power in this respect) to reflect a changed .situation.

As outlined above, the public interest to prosecute will need careful consideration. If the breach is minor and does not involve the commission of another offence then the public interest may be best served by not prosecuting if alternative civil proceedings are contemplated or proceeding. If not apparent from the papers, prosecutors should ask investigating officers to clarify the position prior to making a charging decision.

Where possible, the victim's views should be sought.

Complainant refuses to pursue a prosecution

At paragraph 5.12, the Code for Crown Prosecutors states that when considering the public interest test, prosecutors should consider "the consequences for the victim of whether or not to prosecute, and any views expressed by the victim or the victim's family".

Prosecutors may face the situation of a complainant wishing to withdraw their criminal complaint and then pursue a remedy in the family courts. In such circumstances, after the evidential sufficiency test has been re-considered, the public interest test will demand sensitive and careful consideration. The guidance contained in the previous section on the Public Interest section above applies here as well. In summary, the seriousness of the breach and the surrounding circumstances must be considered along with the views of the complainant and the remedy offered by the family courts.

Guidance and prosecution procedure on complainants withdrawing support, as outlined in our policy statement on Domestic Violence, should be applied.

Mode of trial considerations

When making representations on mode of trial, prosecutors should consider the following factors as aggravating the commission of the offence:

  • use of weapon;
  • use of violence;
  • nature of loss sustained;
  • nature of injury sustained;
  • if the order was breached soon after it was made by a court;
  • the proximity of children to the offence; and
  • vulnerability of the complainant.

Commencement and Transitional arrangements

Commencement Order No. 9 of the DVCVA 2004 brings this provision into force, with details set out in The Family Proceedings (Amendment) Rules 2007, Rule 7 - Transitional Provisions for county or High Court; and The Family Proceedings Courts (Matrimonial Proceedings) (Amendment) Rules 2007, Rule 9 - Transitional Provisions for the lower court. Effectively these Rules provide that the rules in force before the amendments were made, apply to a person arrested after 1 July 2007.

Accordingly, if the order has a power of arrest attached then the police can arrest the person for a breach and then take them to be dealt with in the family courts (see paragraph 3 of the Commencement Order). Where however the power of arrest has expired the new provisions will apply to the order.

The advice received from the Ministry of Justice regarding breaches of pre-1 July orders that do not have a power of arrest attached is that section 1 does not apply but the applicant can apply to have the terms of the original order amended. It is then a matter for the court as to whether to amend the existing order or replace so that the new provisions can apply.

Obviously, if another criminal offence is committed whilst a breach is occurring then the person can be arrested and charged for that offence.

Special Measures

Prosecutors should consider whether the complainant is eligible for special measures under sections 16 or 17 of the Youth Justice and Criminal Evidence Act 1999 at the earliest opportunity.

Prosecutors are also reminded of section 36 of the Youth Justice and Criminal Evidence Act 1999 which prevents a witness from being cross-examined by the defendant in person if the quality of that witness's evidence will improve as a result.

Occupation Orders

These provisions do not apply to occupation orders.

Sentencing Guidelines

The Sentencing Guidelines Council published definitive guidelines, "Breach of a Protective Order in December 2006. These can be found at www.sentencing-guidelines.gov.uk.

These guidelines deal with the sentencing of offenders who have breached either restraining orders or non-molestation orders.