5.1.1 When do the police get involved in domestic disputes or legal actions?
Police can get involved in domestic disputes by way of a complaint having been made at a police station (by a victim, commissioner of the police or a Victim's Agent) or if they have reason to believe there are imminent risks to a person.
Section 11A of the Act obliges the police to respond to every complaint of domestic violence.
Section 14 of the Act allows the police to enter any premises without a warrant if an officer has reasonable grounds to suspect that an emergency protection order, an interim protection order or a civil protection order is being breached; or, upon the invitation of a person resident there or independently, if there are reasonable grounds to suspect that a person on the premises has suffered or is in imminent danger of suffering physical injury at the hands of some other person.
Furthermore, under Section 11B of the Act, police officers are empowered to issue emergency protection orders in cases where they are deemed necessary to ensure the safety of a person at risk, even without the consent of the person at risk.5.1.2 What circumstances effect law firm involvement?
A law firm may be involved if engaged by any party in the judicial proceedings.
5.2.1 Is proof required by any legal means?
Yes. Evidence in legal proceedings is governed under the Evidence Act[39] and the Act provides for evidence for protection orders in cases of domestic violence. Oral evidence on oath or evidence on an affidavit given by the complainant (victim or third party concerned) stating that the accused person is engaging in, has engaged in or threatens to engage in conduct that is capable of constituting a criminal offense or has engaged in conduct that amounts to harassment is required to issue protective orders against domestic violence (Section 3 of the Act). Such evidence should be admitted in the course of the criminal proceedings alongside other evidence that, if accepted, could rationally affect the assessment of the probability of the existence of the offense (Section 44 of the Evidence Act), including but not limited to witness evidence and documents.
5.2.2 Are there any requirements regarding evidence and documents?
The Evidence Act contains provisions regarding the evidence that needs to be submitted. Other than the specific requirements and exceptions in law, and as decided in Hollington v. Hewthorn & Co. Ltd., "all evidence which is sufficiently relevant to an issue before the Court is admissible and all that is irrelevant, or insufficiently relevant, should be excluded."[40] Requirements and exceptions in the Evidence Act include requirements for accepting evidence by children (Section 15); the incompetence of the accused to give witness evidence (Section 18); conditions for accepting "hearsay" evidence (Section 52); and confession (Section 71).
5.2.3 Is proof "beyond a reasonable doubt" required?
Yes. Section 134 of the Evidence Act provides that in criminal proceedings, the court should not find the prosecution's case proved unless it is satisfied that it has been proved beyond reasonable doubt. Nonetheless, if the burden of proof is on the accused, the court should find the accused's case proved if it is satisfied that the case has been proved on the balance of probabilities.
5.2.4 Is the standard of proof different for ex parte orders?
As noted above, an ex parte order (or protection order) requires oral evidence on oath or evidence on an affidavit given by the complainant (victim or third party concerned) stating that the accused person is engaging in, has engaged or threatens to engage in conduct that is capable of constituting a criminal offense or has engaged in conduct that amounts to harassment (Section 3 of the Act).
5.3.1 Are affirmative defenses available to the accused?
The Evidence Act, the Criminal Procedure Act, Cap. 127 and the Magistrate's Courts (Criminal Procedure) Rules 2001 do not seem to specifically refer to affirmative defenses, but the accused should have the right to present evidence or call witnesses in their defense.
5.3.2 Is willful intent required?
The Evidence Act, the Criminal Procedure Act, Cap. 127 and the Magistrate's Courts (Criminal Procedure) Rules 2001 do not seem to specifically refer to willful intent.
5.3.3 Are false accusations punishable for the victim?
Any person that makes a statement that they know to be false or that the person does not believe to be true is liable to conviction on indictment to imprisonment of two years or a fine, or both, as per Sections 57 and 154 of the Evidence Act.
5.3.4 How is consent discussed in the law?
The concept of "consent" does not feature in the applicable law.
In the context of domestic violence, consent is discussed in Section 19(11) of the Evidence Act, which provides that the wife or husband of an accused of the offenses in the First Schedule (which include sexual offenses and offenses against the person) may be called as a witness for the prosecution or defense without the consent of the accused.5.3.5 Is self-defense or insanity a defense?
Yes. Self-defense is a defense under Section 12(2) of the 1966 Constitution of Barbados in circumstances where justifiable force is used to defend a person from violence or to defend property.
Under Section 9A of the Criminal Procedure Act, Cap. 127, an accused person can provide evidence of insanity and have the right to be subject to a special verdict.5.4.1 What is a witness's duty to testify honestly and completely?
Witnesses must make the oath under Schedule Two of the Evidence Act, which provides the following wording:
I swear by Almighty God [or the person to be sworn may name a god recognized by their religion] that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
5.4.2 Who may abstain from testifying in certain situations?
According to Section 19 of the Evidence Act, the spouse, de facto spouse, parent or child of an accused may object to giving evidence as a witness for the prosecution, or may object to giving evidence of communication made between a witness and the accused. If an objection is raised, the court must consider the case circumstances and analyze whether the harm that could be caused to the witness, the party making the objection or the relationship with the accused outweighs the desirability of the evidence. If this is the case, the person should not be required to provide the evidence.
5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?
Section 19 of the Evidence Act provides the right to refuse testimony.
5.4.4 What is the impact of domestic violence on witnesses who are children?
There does not appear to be any specific legal provisions in the Act or the Evidence Act dealing with the impact of domestic violence on witnesses who are children.
5.4.5 Can children be called upon to testify?
Yes. Per Section 15 of the Evidence Act, children between 7 and 14 years old can be called to testify in judicial proceedings. However, the court must assess whether the child is as follows: (i) possessed of "sufficient intelligence" to testify and (ii) competent to understand the consequences of providing false evidence. Children below 7 years old or children who do not meet the "sufficient intelligence" and "competence to understand" tests may still be allowed to testify for two reasons: (i) the court considers the testimony justified and (ii) the testimony is given under oath. Moreover, if the child's witness evidence is used in a case involving a jury, the jury must be made aware of the dangers of accepting such evidence and must consider whether other material supplemental evidence is necessary.
5.4.6 What is the effect of a child victim on the charges against the offender?
Under the Act, a child can be a victim of domestic violence. Therefore, complaints and protection order requests under the Act could be made to protect a child from the threat of domestic violence or domestic violence (Section 4 of the Act). The protection order may require the abuser (respondent) to leave the domestic premises; to pay compensation for pecuniary loss suffered by the victim (complainant); to pay for the maintenance of a child of the victim (complainant); in particular, to grant custody of the child to the victim (complainant); and to enroll in programs facilitated by the Ministry of Social Care. The protection order may also require them to attend the Family Services Division of the Welfare Department or similar agencies for appropriate counseling and therapy (Section 6 of the Act).
5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?
Penalties for domestic violence depend on the severity of the charges and range from a fine (BBD 2,500) for first-time offenders (unless the injury is serious) to life incarceration for cases where the victim died, as determined in the Offenses Against the Person Act 1995 Serious bodily harm and assaults are triable on indictment or summarily, and they can be liable to imprisonment for a term of two (summarily) to 10 years (indictment) or to a fine, or to both, in cases of conviction (Section 44 of the Offenses Against the Person Act 1995. While the death penalty is provided in law in cases of murder, the Caribbean Court of Justice in Judgment 2018-CCJ-19-AJ has ruled it unconstitutional; therefore, it is no longer applicable in practice.
5.5.3 What is the result of a violation of an existing order for protection?
A person who breaches a protection order or an interim protection order commits a criminal offense. That person may be subject to a fine of BBD 2,500 or to imprisonment for a term of six months, or to both, as per Section 11E of the Act.
5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?
As noted, the abuser (respondent) may be subject to pecuniary fines depending on the seriousness of the offense and the circumstances of the case. The Caribbean Court of Justice in Judgment 2018-CCJ-19-AJ ruled the death penalty unconstitutional; therefore, it is no longer applicable.