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24 May 2021

New Domestic Abuse Act: important changes to be aware of

5 mins

The Domestic Abuse Act received Royal Assent on 29 April 2021. Few of the elements are yet in force, but it is anticipated that they will be introduced later this year

In its press release the Home Office has stated that this Act is designed to ‘provide further protections to the millions of people who experience domestic abuse, as well as strengthen measures to tackle perpetrators’.

The Act spans changes in criminal and family law proceedings and places greater responsibility on local authorities to re-house victims of domestic abuse.

The Home Office states that this Act will protect victims of abuse by:

  • creating a statutory definition of domestic abuse, emphasising that domestic abuse is not just physical violence, but can also be emotional, coercive or controlling, and economic abuse. As part of this definition, children will be explicitly recognised as victims if they see, hear or otherwise experience the effects of abuse;
  • creating a new offence of non-fatal strangulation;
  • extending the controlling or coercive behaviour offence to cover post-separation abuse;
  • extending the ‘revenge porn’ offence to cover the threat to disclose intimate images with the intention to cause distress;
  • clarifying the law to further deter claims of “rough sex gone wrong” in cases involving death or serious injury;
  • creating a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal, civil and family courts (for example, to enable them to give evidence via a video link);
  • establishing in law the Domestic Abuse Commissioner, to stand up for victims and survivors, raise public awareness, monitor the response of local authorities, the justice system and other statutory agencies and hold them to account in tackling domestic abuse;
  • placing a duty on local authorities in England to provide support to victims of domestic abuse and their children in refuges and other safe accommodation;
  • providing that all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance and do not lose a secure tenancy;
  • placing the guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) on a statutory footing;
  • stopping vexatious family proceedings that can further traumatise victims by clarifying the circumstances in which a court may make a barring order under section 91(14) of the Children Act 1989;
  • prohibiting GPs and other health professionals from charging a victim of domestic abuse for a letter to support an application for legal aid.

The Home Office has stated that the Act will strengthen measures to tackle perpetrators by:

  • prohibiting perpetrators of abuse from cross-examining their victims in person in family and civil courts in England and Wales;
  • bringing the case of R vs Brown into legislation, invalidating any courtroom defence of consent where a victim suffers serious harm or is killed;
  • enabling domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
  • extending the extraterritorial jurisdiction to further violent and sexual offences;
  • providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order, which will prevent perpetrators from contacting their victims, as well as forcing them to take positive steps to change their behaviour, e.g. seeking mental health support;
  • introducing a statutory duty on the Secretary of State to publish a domestic abuse perpetrator strategy (to be published as part of a holistic domestic abuse strategy).

This Act has been long-awaited as it was initially introduced to the House of Commons in 2017, but its introduction is timely given that there has been growing concern towards the escalation of violence against women, especially during lockdown, as highlighted by the Sarah Everard murder and subsequent vigils and marches. This weekend saw special reports from the Observer and the Guardian highlighting particular failures by the police and CPS with regards to violence against women from minorities and the fact that Home Office figures show that fewer than one in 60 rape cases recorded by the police last year resulted in a suspect being charged.

This Act is trying to redress the perceived imbalance between those accused of domestic abuse, and the victims of domestic abuse. Furthermore, the new Domestic Abuse Protection Notice and Domestic Abuse Protection Order is designed to try and change the behaviour of those convicted rather than just punish them.

It is essential that family and criminal practitioners understand these changes and the ancillary orders available post conviction which attract serious penalties if breached.

Our criminal defence lawyers have expertise and a strong track record in this area and work closely with our family team, for more information visit our Criminal Defence and Extradition page.

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