[1] BBC News, "'Rough sex' defence will be banned, says justice minister," <https://www.bbc.com/news/uk-politics-53064086>, accessed 31 August 2020.
[2] Section 65 of the draft Bill provides that consent to serious harm for sexual gratification will not be a defense in most circumstances.
[3] No judgment available, case reported in: <https://www.theguardian.com/uk-news/2017/jul/28/stalker-jailed-manslaughter-former-partner-killed-herself-nicholas-allen-justene-reece>, accessed 6 September 2020; and <https://www.bbc.com/news/uk-40758095> accessed 6 September 2020.
[4] For a full list of criminal offenses that may be relevant for domestic abuse, see Section 1.
[5] The Crown Prosecution Service (CPS) is the authority responsible for prosecuting crimes in England and Wales. The CPS prosecutes criminal cases that have been investigated either by the police or by other investigative organisations, and takes decisions independently of the police or government. The CPS is responsible for: (i) deciding which cases should be prosecuted; (ii) determining the appropriate charges in complex cases and advising the police early on in investigations; (iii) preparing cases and presenting them at court; and (iv) providing assistance, information and support to both victims and witnesses. CPS lawyers must follow the Code for Crown Prosecutors and, when charging someone, they must be satisfied that there is both sufficient evidence for a realistic prospect of conviction and that prosecuting is in the public interest.
[6] CPS, "Domestic abuse Guidelines for Prosecutors" (dated 28 April 2020), Annex C <https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors#a02> accessed 17 August 2020.
[7] The first reading of the Domestic Abuse Bill in the House of Lords took place on 7 July 2020; a date for the second reading is yet to be set. UK Parliament, "Domestic Abuse Bill 2019-21: Progress of the Bill" <https://services.parliament.uk/bills/2019-21/domesticabuse.html> accessed 25 August 2020.
[8] Section 1, Domestic Abuse Bill 2019-2021.
[9] For emergency situations, the police should be contacted either by dialling 999 or by textphoning 0800 112 999. Calls are free of charge.
[10] Rights of Women, "Reporting an offence to the police: A guide to criminal/police investigations" <https://rightsofwomen.org.uk/wp-content/uploads/2014/10/Reporting-an-offence-to-the-police-A-guide-to-criminal-investigations.pdf> accessed 26 August 2020.
[11] Ibid. For nonemergency situations, reports can be made to the police by calling 101 or by visiting the front desk of the victim's local police station. Anonymous reports can also be made through CrimeStoppers <https://crimestoppers-uk.org/keeping-safe/personal-safety/domestic-abuse>. The UK government has also provided contact details of several organisations who can provide further help: <https://www.gov.uk/report-domestic-abuse>.
[12] Rights of Women, "From Report to Court" <https://rightsofwomen.org.uk/wp-content/uploads/2019/03/From-Report-to-Court-2018.pdf > accessed on 26 August 2020.
[13] An ABE Video is more commonly made for victims of sexual violence, who make a statement by video recording talking to a specifically trained police officer.
[14] CPS, "Achieving Best Evidence in Criminal Proceedings" (March 2011) <https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/best_evidence_in_criminal_proceedings.pdf> accessed 25 August 2020.
[15] CPS, "Domestic Violence: Frequently Asked Question" <https://www.cps.gov.uk/sites/default/files/documents/publications/DV_FAQ_leaflet_accessible_2011.pdf > accessed on 25 August 2020.
[16] CPS, Victims and Witnesses, CPS Commitments to Support <https://www.cps.gov.uk/legal-guidance/victims-and-witnesses-cps-commitments-support> accessed 25 August 2020
[17] CPS, "Domestic Violence: Frequently Asked Question" <https://www.cps.gov.uk/sites/default/files/documents/publications/DV_FAQ_leaflet_accessible_2011.pdf> accessed on 25 August 2020.
[18] Women's Aid, "Police and the Criminal Prosecution Process" <https://www.womensaid.org.uk/the-survivors-handbook/police-and-the-cps/> accessed 25 August 2020.
[19] Sections 5(5) and (6), Protection from Harassment Act 1997.
[20] CPS, "Restraining Orders" <https://www.cps.gov.uk/legal-guidance/restraining-orders-section-5-protection-harassment-act-1997> accessed 25 August 2020.
[21] Refuge, "Legal Help" <https://www.refuge.org.uk/legal-help/> accessed on 25 August 2020.
[22] Further details on the eligibility requirements for claiming compensation can be found on the UK gov.uk website < https://www.gov.uk/claim-compensation-criminal-injury>.
[23] Further details on the eligibility requirements for claiming compensation can be found on the nidirect.gov website < https://www.nidirect.gov.uk/articles/claiming-criminal-injuries-sustained-april-2009 >.
[24] The legislation preventing victims that lived in the same household as their abuser was amended in 1988, but was not made retrospective to include victims who would otherwise have been eligible since the scheme was introduced on 1 March 1969. The court of appeal in Northern Ireland found in their judgment of 23 November 2018 that the pre-1988 same household rule amounted to unlawful discrimination and constituted a breach of the appellant's human rights.
[25] Rights of Women, "Domestic Violence Injunctions" <https://rightsofwomen.org.uk/get-information/violence-against-women-and-international-law/domestic-violence-injunctions/> accessed 26 August 2020.
[26] CPS, "Stalking and Harassment" (dated 23 May 2018) <https://www.cps.gov.uk/legal-guidance/stalking-and-harassment> accessed 26 August 2020.
[27] Citizens Advice, "Taking action about harassment" <https://www.citizensadvice.org.uk/law-and-courts/discrimination/taking-action-about-discrimination/taking-action-about-harassment/> accessed 26 August 2020.
[28] Birchall, J. and Choudhry, S. (2018) "'What about my right not to be abused?' Domestic abuse, human rights and the family courts" Bristol: Women's Aid, pg. 11 <https://1q7dqy2unor827bqjls0c4rn-wpengine.netdna-ssl.com/wp-content/uploads/2018/05/Domestic-abuse-human-rights-and-the-family-courts-report.pdf> accessed 7 September 2020.
[29] Human Rights Watch, "UK Failing Domestic Abuse Victims in Pandemic" (dated 8 June 2020) <https://www.hrw.org/news/2020/06/08/uk-failing-domestic-abuse-victims-pandemic> accessed 31 August 2020 and Women's Aid, "Briefing for Report Stage and Third Reading of the Domestic Abuse Bill," July 2020 <https://1q7dqy2unor827bqjls0c4rn-wpengine.netdna-ssl.com/wp-content/uploads/2020/07/Women27s-Aid-Briefing-for-Domestic-Abuse-Bill-Report-Stage-and-Third-Reading.pdf> accessed 31 August 2020.
[30] Section 1(1), Preventing and Combating Violence Against Women and Domestic Violence (ratification of convention) Act 2017.
[31] Section 1(3), Preventing and Combating Violence Against Women and Domestic Violence (ratification of convention) Act 2017.
[32] The Home Office, "Ratification of the Council of Europe Convention on Combating Violence Against Women and Girls and Domestic Violence (Istanbul Convention) – 2019 Report on Progress" (dated October 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/843509/CCS0919132732-001_Istanbul_Convention_2019_Report_Option_A_Web_Accessible.pdf> accessed 5 August 2020.
[33] This is required in accordance with Section 2 of the Preventing and Combating Violence Against Women and Domestic Violence (ratification of convention) Act 2017.
[34] The Home Office "Ratification of the Council of Europe Convention on Combating Violence Against Women and Girls and Domestic Violence (Istanbul Convention) – 2019 Report on Progress" (dated October 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/843509/CCS0919132732-001_Istanbul_Convention_2019_Report_Option_A_Web_Accessible.pdf> accessed 6 August 2020.
[35] Article 4(3) of the Istanbul Convention.
[36] As the proposed definition of "domestic abuse" in Section 1 of the Bill will include reference to behavior that consists of psychological abuse.
[37] For England and Wales: by way of Section 76, Serious Crime Act 2015, which contains an offense of controlling or coercive behavior in an intimate or family relationship, which amounts to extreme emotional or psychological abuse; for Scotland: by way of Section 1, Domestic Abuse (Scotland) Act 2018, which contains an offense where a person is abusive to their partner (or ex-partner) and causes them to suffer (or are reckless that they might suffer) psychological harm.
[38] As detailed in the 2019 Report on Progress. "The Home Office Ratification of the Council of Europe Convention on Combating Violence Against Women and Girls and Domestic Violence (Istanbul Convention) – 2019 Report on Progress" (dated October 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/843509/CCS0919132732-001_Istanbul_Convention_2019_Report_Option_A_Web_Accessible.pdf> accessed 6 August 2020.
[39] UK government, "Ending Violence against Women and Girls 2016-2020: Strategy Refresh" (dated March 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783596/VAWG_Strategy_Refresh_Web_Accessible.pdf> accessed 26 August 2020.
[40] UK government, "Ending Violence Against Women and Girls 2016-2020: Progress Update" (dated March 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783190/VAWG_Progress_Update_Web_Accessible.pdf> accessed 4 September 2020.
[41] United Nations: Human Rights, "Status of Ratification Interactive Dashboard" <https://indicators.ohchr.org/> accessed 26 August 2020.
[42] Equality and Human Rights Commission, "Convention on the Elimination of Discrimination against Women (CEDAW)" <https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/convention-elimination-discrimination> accessed on 4 September 2020.
[43] Article 18 of the 1979 Convention requires State Parties to submit a report to the Secretary-General of the UN a report on the legal, judicial, administrative or other measures that they have adopted to give effect to the provisions of the convention, and on the progress made in this respect.
[44] United Nations: Human Rights, "Convention on the Elimination of All Forms of Discrimination against Women" New York, 18 December 1979 <https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx> accessed on 4 September 2020.
[45] UK government, "United Nations Convention on the Elimination of all forms of Discrimination Against Women United Kingdom's Eighth Periodic Report 2011 - 2017" (received by CEDAW 16 November 2017) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/698249/UN_convention_on_the_elimination_of_all_forms_of_discrimination_against_women_8th.pdf> accessed 4 September 2020.
[46] CEDAW, "Concluding observations on the eighth periodic report of the United Kingdom of Great Britain and Northern Ireland" (dated 14 March 2019) <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GBR/CO/8&Lang=En> accessed 4 September 2020.
[47] Paragraph 13 of the 2019 Recommendations.
[48] Paragraph 21(a) of the 2019 Recommendations.
[49] Paragraph 21(b) of the 2019 Recommendations.
[50] Paragraph 25(b) of the 2019 Recommendations.
[51] UK government, "Transforming the Response to Domestic Abuse Consultation Response and Draft Bill" (dated January 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/772202/CCS1218158068-Web_Accessible.pdf> accessed 4 September 2020.
[52] Scottish government, "Brexit: social and equality impacts" (dated 26 January 2020) <https://www.gov.scot/publications/social-equality-impacts-brexit/pages/15/> accessed 4 September 2020.
[53] Ministry of Justice, Domestic Abuse Policy Framework, <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/877643/domestic-abuse-pf.pdf> accessed 4 September 2020.
[54] Protection from Harassment Act 1997, <https://www.legislation.gov.uk/ukpga/1997/40/section/2A> accessed 4 September 2020.
[55] Protection from Harassment Act 1997, <https://www.legislation.gov.uk/ukpga/1997/40/section/1> accessed 4 September 2020.
[56] Victims of Crime (The Code of Practice) - CPS Legal Guidance, <https://www.cps.gov.uk/legal-guidance/victims-crime-code-practice-cps-legal-guidance> accessed 4 September 2020.
[57] Sexual Offences Act 2003, < https://www.legislation.gov.uk/ukpga/2003/42/contents> accessed 4 September 2020.
[58] Domestic Abuse (Scotland) Act 2018, <https://www.legislation.gov.uk/asp/2018/5/part/1/enacted> accessed 4 September 2020.
[59] Criminal Justice and Licensing (Scotland) Act 2010, <https://www.legislation.gov.uk/asp/2010/13/contents> accessed 4 September 2020.
[60] Protection from Harassment Act 1997, <https://www.legislation.gov.uk/ukpga/1997/40/crossheading/scotland> accessed 4 September 2020.
[61] Victims' Code for Scotland, <https://www.mygov.scot/victims-code-for-scotland/victims-code-scotland.pdf?inline=true> accessed 4 September 2020.
[62] Sexual Offences (Scotland) Act 2009, <https://www.legislation.gov.uk/asp/2009/9/introduction> accessed 4 September 2020.
[63] Police Service of Northern Ireland, "Harassment and Stalking," <https://www.psni.police.uk/crime/domestic-abuse/harassment-and-stalking/> accessed 4 September 2020.
[64] The Victims and Survivors (Northern Ireland) Order 2006, <https://www.legislation.gov.uk/nisi/2006/2953/article/3> accessed 4 September 2020.
[65] Public Prosecution Service for Northern Ireland, "Sexual Offences (Offence Description and Legislation)" accessed 4 September 2020<https://www.ppsni.gov.uk/sites/ppsni/files/publications/Sexual%20Offences%20Offence%20Description%20and%20Legislation.pdf> accessed 4 September 2020.
[66] Family Law Act 1996, Section 42.
[67] Family Law Act 1996, Section 33 to Section 40.
[68] Domestic Violence, Crime and Victims Act 2004, Section 12.
[69] Crime and Security Act 2010, Section 27.
[70] Family Law Act 1996, Section 42(1)(b)_.
[71] A "relevant child" is defined as: any child who is living with or might reasonably be expected to live with either party to the proceedings; any child in relation to whom an order under the Adoption Act 1976, the Adoption and Children Act 2002 or the Children Act 1989 is in question in the proceedings; and any other child whose interests the court considers relevant.
[72] Family Law Act 1996, s 62(3) and s 62(4). Further information can be found in the guidance to Form FL401: (https://www.gov.uk/government/publications/form-fl401-application-for-a-non-molestation-order-occupation-order)
[73] Family Law Act 1996, ss 33, 35, 36, 37, and 38
[74] Domestic Violence, Crime and Victims Act 2004, s 12
[75] However, if the order is made on acquittal, the harassment must lead to fear of violence.
[76] https://www.cps.gov.uk/legal-guidance/restraining-orders-section-5-protection-harassment-act-1997
[77] Crime and Security Act 2010, Section 24.
[78] Crime and Security Act 2010, Section 24(9).
[79] Crime and Security Act 2010, Section 27.
[81] Domestic Abuse Protection Notices/Orders factsheet <https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-protection-notices-orders-factsheet>
[82] See Domestic Abuse Bill 2019, Section 78, for a summary of the extent of the Bill's application across the United Kingdom.
[84] Matrimonial Homes (Family Protection) (Scotland) Act 1981, Section 14.
[85] Matrimonial Homes (Family Protection) (Scotland) Act 1981, Section 14(2).
[86] Civil Partnership Act 2004, Section 113.
[87] Matrimonial Homes (Family Protection) (Scotland) Act 1981, Section 18A.
[88] Domestic Abuse (Scotland) Act 2011, Section 3(1).
[89] Domestic Abuse (Scotland) Act 2011, Section 3(2).
[90] Domestic Abuse (Scotland) Act 2011, Section 2.
[91] Protection from Abuse (Scotland) Act 2001, Section 4.
[92] Protection from Abuse (Scotland) Act 2001, Section 1A.
[93] Protection from Abuse (Scotland) Act 2001, Section 2.
[94] Matrimonial Homes (Family Protection) (Scotland) Act 1981, Section 4 and Section 18(3); Civil Partnership Act 2004, Section 104.
[95] Protection from Harassment Act 1997, Section 8A.
[96] Protection from Harassment Act 1997, Section 9.
[97] Protection from Harassment Act 1997, Section 9(1).
[98] Criminal Procedure (Scotland) Act 1995, Section 234AZA(3).
[99] Criminal Procedure Scotland Act 1995, Section 234AZA.
[100] Domestic Abuse (Scotland) Act 2018, paragraph 9, schedule 1
[101] Protection from Harassment Act 1997, Section 10.
[102] Family Homes and Domestic Violence (Northern Ireland) Order 1998, Article 20.
[103] Family Homes and Domestic Violence (Northern Ireland) Order 1998, Articles 11 to 19.
[104] Protection from Harassment (Northern Ireland) Order 1997, Articles 7 and 7A.
[105] Family Homes and Domestic Violence (Northern Ireland) Order 1998, Article 3.
[106] Family Homes and Domestic Violence (Northern Ireland) Order 1998, Section 11.
[107] Protection from Harassment (Northern Ireland) Order 1997, Article 6.
[108] Children Act 1989, Section 43 (England & Wales), Children's Hearings (Scotland) Act 2011, Section 35 (Scotland), Children (Northern Ireland) Order 1995, Section 62.
[109] Children Act 1989, Section 44 (England & Wales), Children's Hearings (Scotland) Act 2011, Section 37 (Scotland), Children (Northern Ireland) Order 1995, Section 63.
[110] Children Act 1989, Section 8.
[111] Children Act 1989, Section 31 (England & Wales), Children (Northern Ireland) Order 1995, Section 50 (Northern Ireland).
[115] https://foi.west-midlands.police.uk/wp-content/uploads/2020/03/2679_ATTACHMENT_.pdf
[119] https://questions-statements.parliament.uk/written-questions/detail/2017-02-20/64617
[122]Ibid
[124] https://www.refuge.org.uk/legal-help/; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717671/fl700-eng.pdf
[127] Family Law Act 1996, Section 45.
[128]Family Procedure Rules 2010, rule 10.
[130] Domestic Abuse Protection Notices/Orders factsheet <https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-protection-notices-orders-factsheet>
[132]https://www.scottishwomensrightscentre.org.uk/resources/Exclusion-Orders-guide-final-.pdf [Note: if hyperlink does not work, copy and paste the address into your browser].
[133] https://www.scottishwomensrightscentre.org.uk/resources/SWR-008-Legal-Guide-A5-Folded-WEB.pdf [Note: if hyperlink does not work, copy and paste the address into your browser].
[134] https://www.justice-ni.gov.uk/sites/default/files/publications/justice/p_uf_F1_NMO_OCCUP.pdf
[135] Note that all references in this section to the "court" should be read as references to the judge.
[136] Family Law Act 1996, Section 45(2).
[137] https://uk.practicallaw.thomsonreuters.com/Document/I4c2a1620518a11e498db8b09b4f043e0/View/FullText.html?transitionType=SearchItem&contextData=(sc.Default)&firstPage=true#co_anchor_a86328; https://uk.practicallaw.thomsonreuters.com/Document/I4c2a3b2c518a11e498db8b09b4f043e0/View/FullText.html?transitionType=SearchItem&contextData=(sc.Default)#co_anchor_a259539
[138] Family Law Act 1996, Section 43.
[140] Crime and Security Act 2010, Section 24(3).
[142] Crime and Security Act, Section 28(4).
[143] Crime and Security Act, Section 28(5).
[145] Civil Partnership Act 2004, Section 104.
[146] Family Homes and Domestic Violence (Northern Ireland) Order 1998, Article 11(7).
[147] Protection from Harassment Act 1997, Section 3; Protection from Harassment (Northern Ireland) Order 1997, Article 5.
[148] https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide; https://www.justice-ni.gov.uk/topics/justice-and-law/compensation-services#toc-0
[149] The 'same household' rule prevented claims where the injuries had been inflicted on victims living in the same household as their perpetrator.
[150] Further details on the eligibility requirements for claiming compensation can be found on the nidirect.gov website < https://www.nidirect.gov.uk/articles/claiming-criminal-injuries-sustained-april-2009 >.
[151] UK Government, "Report Domestic Abuse" <https://www.gov.uk/report-domestic-abuse> Accessed 20 July 2020.
[152] Independent Office for Police Conduct, "Silent Solution Guide" <https://www.policeconduct.gov.uk/sites/default/files/Documents/research-learning/Silent_solution_guide.pdf> Accessed 21 July 2020.
[153] Dash Risk Model, Introduction <https://www.dashriskchecklist.co.uk/> Accessed 24 July 2020.
[154] UK government, Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs) guidance < https://www.gov.uk/government/publications/domestic-violence-protection-orders/domestic-violence-protection-notices-dvpns-and-domestic-violence-protection-orders-dvpos-guidance-sections-24-33-crime-and-security-act-2010> Accessed 29 July 2020.
[155] ibid.
[156] Crime and Security Act 2010, Section 24.
[157] Home Office, Domestic Violence Disclosure Scheme (DVDS) Guidance <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf> Accessed 26 July 2020.
[158] Practical Law Family, Alternative methods of protection for domestic violence and abuse victims <https://uk.practicallaw.thomsonreuters.com/Document/Ib73e2c6b156711e89bf099c0ee06c731/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad7401600000173483a74eb1bb5ce47%3FNav%3DKNOWHOW_UK%26fragmentIdentifier%3DIb73e2c6b156711e89bf099c0ee06c731%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=3b9c019cb14b520c219552054db4d635&list=KNOWHOW_UK&rank=4&sessionScopeId=cf8c13642a15b5c641463348617ad352d85c4893fdd606b9e07c4cde8b32824a&originationContext=Search+Result&transitionType=SearchItem&contextData=%28sc.Search%29&comp=pluk> Accessed 20 July 2020.
[159] ViSOR is the Dangerous Persons Database. This is used as a management tool by UK law enforcement and a wide range of other agencies, to share information and contribute to the risk management of offenders.
[160] Women's Aid, "Your Legal Rights" < https://www.womensaid.org.uk/the-survivors-handbook/your-legal-rights/ > Accessed 3 September 2020.
[161] Rights of Women, "Family Court proceedings: where can I get advice and support?" < https://rightsofwomen.org.uk/get-information/family-law/family-court-proceedings-can-get-advice-support/ > Accessed 3 September 2020.
[162] GOV.UK, Legal Aid, "Domestic abuse or violence" < https://www.gov.uk/legal-aid/domestic-abuse-or-violence > Accessed 3 September 2020.
[163] Woolmington v DPP [1935] UKHL 1.
[164] Miller v Minister of Pensions [1947] 2 All ER 372.
[165] CPS, "Gathering of evidence and case building" < https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors> accessed 24 August 2020.
[166] CPS, Joint Evidence Checklist < https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors#a90> accessed 24 August 2020.
[167] COPFS, Joint Protocol between Police Scotland and the COPFS in partnership challenging domestic abuse < https://www.copfs.gov.uk/images/Documents/Our%20Priorities/Domestic%20abuse/Joint%20Domestic%20Abuse%20Protocol.pdf> Accessed 24 August 2020.
[168] PPS, Policy for Prosecuting Cases of Domestic Violence < https://www.ppsni.gov.uk/sites/ppsni/files/publications/PPS%20Domestic%20Violencee%20Policy.pdf> Accessed 24 August 2020.
[169] UK government, "Get an injunction if you've been the victim of domestic abuse" < https://www.gov.uk/injunction-domestic-violence> accessed 22 August 2020.
[170] https://www.legislation.gov.uk/uksi/2010/2955/article/10.2/made
[171] Re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR.
[172] Practical Law, Affirmative Defence < https://uk.practicallaw.thomsonreuters.com/6-518-1993?transitionType=Default&contextData=(sc.Default)&firstPage=true> Accessed 24 August 2020.
[173] CPS, False Allegations of Rape and/or Domestic Abuse, see: Guidance for Charging Perverting the Course of Justice and Wasting Police Time in Cases involving Allegedly False Allegations of Rape and/or Domestic Abuse <https://www.cps.gov.uk/legal-guidance/false-allegations-rape-andor-domestic-abuse-see-guidance-charging-perverting-course> accessed 25 August 2020.
[174] Charging Perverting The Course Of Justice And Wasting Police Time In Cases Involving Allegedly False Rape And Domestic Violence Allegations < https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/perverting-course-of-justice-march-2013.pdf > Accessed 3 September 2020.
[175] ibid
[176] R v Brown [1993] UKHL 19, [1994] 1 AC 212
[177] BBC News, "'Rough sex' defence will be banned, says justice minister" https://www.bbc.com/news/uk-politics-53064086, accessed 31 August 2020.
[178] UK Parliament, "Domestic Abuse Bill 2019-2021" < https://services.parliament.uk/bills/2019-21/domesticabuse.html> accessed 26 August 2020.
[180] M'Naghten [1843] UKHL J16.
[181] R (on application of Singh) v Stratford Magistrates' Court [2007] EWHC 1582 (Admin).
[182] The Trial of Lunatics Act 1883, Section 2(1).
[183] The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, Section 1(1).
[184] Ibid, Section 5.
[185] Criminal Procedure Rules, Part 16.2, < http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu-2015> accessed 6 September 2020.
[186] Domestic Abuse Guidelines for Prosecutors < https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors> accessed 6 September 2020.
[187] Criminal Justice Act 2003, Section 116 (2) (e).
[188] Criminal Justice Act 2003, Section 114 (1) (d).
[189] Serious Organised Crime and Police Act 2005, Section 169.
[190] Police and Criminal Evidence Act 1984, Section 80 (2A).
[191] Local government Association, "The relationship between family violence and youth offending," June 2018 < https://www.local.gov.uk/sites/default/files/documents/15%2034%20-%20The%20relationship%20between%20family%20violence%20and%20youth%20offending-V4_1.pdf> accessed 6 September 2020.
[192] The legislation recognizes this in relation to care and supervision orders. A local authority or authorized person can apply to the court for a care and supervision order and the court can make an order placing a child in the care of the designated local authority where (amongst other conditions) it is satisfied that the child concerned is "suffering, or is likely to suffer, significant harm."
[193] Children Act 1989, Section 31 and Adoption and Children Act 2002, Section 120 for England and Wales; The Children (Northern Ireland) Order 1995, Article 2 and Family Homes and Domestic Violence (Norther Ireland) Order 1998, Section 28 for Northern Ireland; The Scottish government, "National Guidance for Child Protection in Scotland" (2014), 13 for Scotland.
[194] Children Act 1989, s 31 (10) for England and Wales; The Children (Northern Ireland) Order 1995, s 50(3) for Northern Ireland; The Scottish government, "National Guidance for Child Protection in Scotland" (2014), 13 for Scotland.
[195] Youth Justice and Criminal Evidence Act 1999, Section 53.
[196] A special measures direction is available under Section 18 of the Youth Justice and Criminal Evidence Act 1999.
[197] Magistrates' Court Act 1980, Section 97.
[198] Domestic Abuse Bill 2019-2021, Section 3 < https://publications.parliament.uk/pa/bills/lbill/58-01/124/5801124.pdf> accessed 3 September 2020.
[199] Sexual Offences Act 2003, Section 5.
[200] Sexual Offences Act 2003, Section 7.
[201] Sexual Offences Act 2003, Section 48.
[202] Sexual Offences Act 2003, Section 49.
[203] Sexual Offences Act 2003, Section 50.
[204] Domestic Violence, Crime and Victims Act 2004 (as amended), s 5. The offense is triable on indictment only.
[205] Infanticide Act 1938, Section 1.
[206] Children and Young Persons Act 1933 (as amended), Section 1.
[207] As per Children Act 2004, Section 58.
[208] Child Abduction Act 1984, Sections 1 and 2.
[209] "Connected with" is defined in the Child Abduction Act 1984, Section 2, to include a parent, guardian or any person who has custody of the child.
[210] As available from the Sentencing Council for England and Wales, either for the magistrates' court or the crown court (as applicable). Sentencing guidelines for Northern Ireland are available from Judiciary NI and for Scotland are available from the Scottish Sentencing Council.
[211] Sentencing Council, "General guideline: overarching principles" (effective from 1 October 2019) < https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/general-guideline-overarching-principles/ > accessed 3 August 2020.
[212] Sentencing Council, "Domestic Abuse" (effective from 24 May 2018) < https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/domestic-abuse/ > accessed on 3 August 2020.
[213] Maximum penalty as stated either in the relevant legislation or in the relevant Sentencing Council sentencing guidelines (available here <https://www.sentencingcouncil.org.uk/>). The maximum penalty may vary in Northern Ireland and/or Scotland. Sentencing guidelines for Northern Ireland are available from Judiciary NI (<https://judiciaryni.uk/?_sm_au_=iVV4TS5t4STQ4tH5KkM6NKsW8f6TG>) and for Scotland are available from the Scottish Sentencing Council (<https://www.scottishsentencingcouncil.org.uk/sentencing-guidelines/>).
[214] Protection from Harassment Act 1997, Sections 5 (5) and (6).
[215] Family Law Act 1996, Section 42A.
[216] Criminal Justice Act 2003, Section 164.
[217] General Guidelines: Fines < https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/general-guideline-overarching-principles/ > accessed on 3 September 2020.
[218] Victims can contact the Victim Information and Advice at the Crown Office and Procurator Fiscal Service. Further information on how to get in contact is available at: <https://www.sps.gov.uk/PeopleAffectedbyCrime/VictimNotificationScheme/How-to-Register.aspx>.
[219] The online registration form can be found at: <https://www.pbni.org.uk/what-we-do/victim-information-scheme/victim-information-scheme-online-registration-form/>.
[220] In particular, note that, although coercive or controlling behavior was introduced as a standalone offense in England and Wales pursuant to Serious Crime Act 2015 and in Scotland pursuant to Domestic Abuse (Scotland) Act 2018, there is no corresponding defense. Note that the offense has not yet been introduced in Northern Ireland; however, The Domestic Abuse and Family Proceedings Bill 2020 was introduced to the Northern Ireland Assembly in March 2020.
[221] For example, in relation to England, Wales and Northern Ireland see Hasan [2005] UKHL 22, R v GAC [2013] EWA Crim 1472. Note comments in relation to the defense of coercion and provocation in Scotland. We have not been able to find any specific cases where domestic abuse has been raised with the aim of supporting a defense of coercion.
[222] For example, in relation to England, Wales and Northern Ireland, see R v Ahluwalia [1992] 4 AER 889, R v Thornton [1996] 1 WLR 1174, R v Charlton [2003] EWCA Crim 415; in relation to Scotland see Graham v Her Majesty's Advocate [2013] HCJAC 149, Galbraith v Her Majesty's Advocate (No.2) [2002] JC 1; Drury v Her Majesty's Advocate Appeal No: C76/99.
[223] CPS "Defences - Duress and Necessity" <https://www.cps.gov.uk/legal-guidance/defences-duress-and-necessity> (accessed August 2020).
[224] CPS "Defences - Duress and Necessity" <https://www.cps.gov.uk/legal-guidance/defences-duress-and-necessity> (accessed August 2020) see R v Graham [1974] Cr.App.R. 235.
[225] R v Baker [1997] Crim LR. 497.
[226] Thomson v HM Advocate 1983 S.L.T. 541.
[227] Section 54(7) Coroners and Justice Act 2009.
[228] Section 55 Coroners and Justice Act 2009.
[229] Section 54(2) Coroners and Justice Act 2009.
[230] Section 55 Coroners and Justice Act 2009.
[231] Drury v Her Majesty's Advocate Appeal No: C76/99
[232] Gillon v Her Majesty's Advocate [2006] HCJAC 61
[233] See, for example, Drury v Her Majesty's Advocate Appeal No: C76/99.
[234] Section 2(3) Homicide Act 1957.
[235] Section 2 Homicide Act 1957.
[236] R v Byrne [1960] 2 QB 396.
[237] CPS 'Homicide: Murder and Manslaughter' <https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter#:~:text=Partial%20defences%2C%20are%20different%20to,pursuance%20of%20a%20suicide%20pact.> (accessed August 2020).
[238] Section 51B Criminal Procedure (Scotland) Act 1995.
[239] In particular, we have looked at the following resources:
- Employment Rights Act 1996
- Domestic Abuse Bill 2019-21
- CPS "Domestic Abuse Guidelines for Prosecutors" <https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors> accessed September 2020
- CPS 'Sentencing - Ancillary Orders' < https://www.cps.gov.uk/legal-guidance/sentencing-ancillary-orders> accessed September 2020.
[240] CPS "Domestic Abuse Guidelines for Prosecutors" <https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors> accessed September 2020.
Also note that the Domestic Abuse Bill 2019-2021 includes new routes to allow victims and specific third parties to apply for orders against perpetrators of domestic abuse.
[241] Department for Work & Pensions "Jobseeker's Allowance sanctions: how to keep your benefit payment" <https://www.gov.uk/government/publications/jobseekers-allowance-sanctions-leaflet/jobseekers-allowance-sanctions-how-to-keep-your-benefit-payment> accessed August 2020.
UK government "Advice for decision making: staff guide Chapter K3 - Higher Level Sanctions" < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864951/admk3.pdf> accessed August 2020.
[242] UK government "Advice for decision making: staff guide Chapter K2 – Good reason" < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/843716/admk2.pdf> accessed August 2020.
[243] See UK government "Advice for decision making: staff guide Chapter J3 - Work-related requirements" < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878192/admj3.pdf> accessed August 2020.
[244] Section 98 The Universal Credit Regulations 2013. See also UK government "Advice for decision making: staff guide Chapter J3 - Work-related requirements" <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878192/admj3.pdf> accessed August 2020.
[245] Section 57A(1) Employment Rights Act 1996, which extends to England and Wales and Scotland. Identical language is included at s85A The Employment Rights (Northern Ireland) Order 1996, which is relevant to Northern Ireland. Only relevant provisions copied above.
[246] Section 230 Employment Rights Act 1996. Identical language is included at Section 3 The Employment Rights (Northern Ireland) Order 1996.
[247] Qua v John Morrison Solicitors [2003] IRLR 184, in relation to Section 57A Employment Rights Act 1996.
[248] Qua v John Morrison Solicitors [2003] IRLR 184.
[249] Section 57A(6) Employment Rights Act 1996; s85A(6) The Employment Rights (Northern Ireland) Order 1996
[250] UK government "Time off for family and dependants" <https://www.gov.uk/time-off-for-dependants> accessed August 2020. See also NI government "Time off for dependants (compassionate leave)" <
https://www.nidirect.gov.uk/articles/time-dependants-compassionate-leave#:~:text=You%20have%20the%20right%20to,for%20taking%20it%20are%20genuine> accessed August 2020.
[251] Section 57A(3)-(5) Employment Rights Act 1996; Section 85A(3)-(5) The Employment Rights (Northern Ireland) Order 1996
[252] Note: Immigration is a matter reserved to the UK government and handled by the Home Office. The Immigration Rules and Home Office Policy therefore apply to England, Wales, Scotland and Northern Ireland.
[253] "Immigration Rules Appendix FM: family members - Victim of domestic abuse" https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members
[254] Note: the provisions also apply to partners of members of HM Forces who have served for at least four years.
[255] Note: the domestic violence does not need to have been perpetrated by their partner. It must be shown that the relationship broke down as a result of such domestic violence.
[256] Home Office "Victims of domestic violence and abuse" Version 14.0 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/680977/victims-of-domestic-violence-v14.pdf
[257] In particular, we have looked at the following resources:
CPS "Domestic Abuse Guidelines for Prosecutors" < https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors> accessed September 2020
CPS 'SOCPA Agreements: Note for those representing assisting offenders' < https://www.cps.gov.uk/legal-guidance/socpa-agreements-note-those-representing-assisting-offenders> accessed September 2020. Note that the Serious Organised Crime and Police Act 2005 established a statutory framework to regulate agreements made with offenders who have offered to assist the investigation or prosecution of offenses committed by others. We would not expect this framework to be relevant in this situation. In particular we note that the framework requires that the victim of domestic violence has committed an offense (a list of the most commonly prosecuted immigration offenses is provided at CPS "Immigration Offences legal guidance - Annex Tables of Immigration Offences" <https://www.cps.gov.uk/sites/default/files/documents/publications/Immigration-Offences-Annex.pdf> accessed September 2020).
[258] Home Office " Domestic abuse: responding to reports of domestic abuse from asylum seekers" Version 1.0 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/817667/domestic-abuse-asylum-support-v1.0.pdf
[259] House of Lords House of Commons Joint Committee on the Draft Domestic Abuse Bill 'Draft Domestic Abuse Bill' <https://publications.parliament.uk/pa/jt201719/jtselect/jtddab/2075/2075.pdf> accessed 3 September 2020.
[260] Home Office "Migrant Victims of Domestic Abuse - Review Findings" July 2020 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897472/Migrant_Victims_of_Domestic_Abuse_-_Review_Findings_v.3._FINAL.pdf> accessed 3 September 2020.
[261] https://www.gov.uk/government/publications/armed-forces-domestic-abuse-where-to-get-help/armed-forces-domestic-abuse-where-to-get-help#information-for-victims (accessed on 4 August 2020).
[262] Domestic Abuse: Guidance and Support for the Armed Forces Community, A Handbook for Civilian Support Services, May 2020 < https://www.gov.uk/government/publications/armed-forces-domestic-abuse-a-handbook-for-civilian-support-services/armed-forces-domestic-abuse-a-handbook-for-civilian-support-services> (accessed on 4 August 2020).
[263] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/772202/CCS1218158068-Web_Accessible.pdf (accessed 28 August 2020).
[264] https://www.theguardian.com/society/2017/jan/20/uk-judges-change-court-rules-on-child-contact-for-violent-fathers-domestic-abuse (accessed 7 August 2020).
[265] https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j (accessed 7 August 2020).
[266] Re B (A Minor) (Access) [1984] 1 FLR 648, 649.
[267] Women's Aid and Queen Mary University School of Law, "'What about my right not to be abused?' Domestic abuse, human rights and the family courts," May 2018, p7.
[268] https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j (accessed 7 August 2020).
[269] https://www.legislation.gov.uk/ukpga/1996/27/section/30 (accessed 8 August 2020).
[270] https://england.shelter.org.uk/legal/relationship_breakdown/marriedcivil_partners_sole_owner/rights_to_occupy_the_home#1 (accessed 28 August 2020).
[271] https://uk.practicallaw.thomsonreuters.com/2-503-9275?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&navId=3BA52144FCFCB4F02A3E4E2A5B30F022&comp=pluk#co_anchor_a502993 (accessed 8 August 2020).
[272] Housing Act 1996, section 175 (3).
[273] Housing Act 1996, section 171(1).
[274] Homelessness Code 2018, paragraph 21.25.
[275] Homelessness Code 2018, paragraph 21.21.
[276] https://uk.practicallaw.thomsonreuters.com/Document/I4c2a3b2c518a11e498db8b09b4f043e0/View/FullText.html?transitionType=SearchItem&contextData=(sc.Search) (accessed 7 August 2020).
[279] Homelessness Code, paragraph 21.30.