Protecting victims of domestic violence are we getting the balance right? Claire Bessant Principal Lecturer, Northumbria University

Defining domestic violence Cross-government: any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality Government’s gendered definition: ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.’ Yemshaw v London Borough of Hounslow [2011] UKSC 3 ‘physical violence, threatening or intimidating behaviour and any other form of abuse which … may give rise to the risk of harm’ See also Welsh Assembly Government, Tackling Domestic Abuse: The All Wales National Strategy, 2005

Obligations to Act Council of Europe, Recommendation Rec (2002) 5 of the Committee of Ministers to member States on the protection of women against violence adopted on 30 April 2002 UN Declaration on the Elimination of Violence against Women: UN General Assembly Resolution 48/104 of 20 December 1993 ECHR Articles 2, 3 and 8. See Opuz v Turkey[2009] ECHR 870; Kontrovia v Slovakia App 7510/04 and Bevacqua and S v Bulgaria (app no 71127/01)

Notions of Privacy A right to be let alone The control of one’s own information Freedom from interference with personal space Autonomy to engage in one’s own thoughts, decisions and actions Opposing camps – ◦ Women’s family and spatial privacy should be respected. They should be afforded greater decisional privacy ◦ Domestic abuse impairs victim’s decision making ability and justifies state intervention. Privacy permits and legitimises violence

Balancing rights to privacy and protection Article 3 is an absolute right. Article 8 is a qualified right. Where domestic violence reaches the necessary level of severity to engage Article 3, breach of Article 3 cannot be justified on the basis that it is necessary to avoid interference with the Article 8 rights of either perpetrator of victim Where the victim’s Article 8’s right to protection of bodily integrity is engaged it needs to be balanced against the rights of victim and perpetrator to home, family and private life

The law Criminal law Civil law – primarily Family Law Act 1996 remedies; NMOs and OOs Problems with existing law: ◦ High attrition rate in criminal justice system ◦ Protection offered through bail conditions questionable ◦ Without notice OOs almost impossible to obtain, court’s often fail to provide effective remedies to victims of non-physical abuse ◦ Victims must apply for NMOs and OOS

Go notices and go orders Domestic violence protection notice: ◦ written notice personally served by police on a perpetrator. Provisions similar to NMOs and OOS. ◦ Need reasonable grounds to believe P has been violent to or threatened violence to V, V is an associated person and the notice is necessary to protect V from violence or threat of it ◦ V’s wishes considered, not determinative Domestic violence protection order: ◦ Civil order made by magistrates. Provisions and grounds similar to notice

The disclosure scheme pilots Police will test two different processes for disclosing information which will enable a partner (A) of a previously violent individual (B) to make informed choices about whether they take forward their relationship with B A right to ask scheme – A or a third party (C) ask the police to disclose information about B A right to know scheme – as a result of having information which indicates a risk to A’s safety the police disclose information to A

Conclusion The state has an obligation to act to prevent domestic violence/violence against women and children The current law is not 100% effective Go notices and orders could be a useful additional remedy. Short term affect on private, family and home life. Guidance emphasises need to consider respective parties’ rights Disclosure scheme – the key questions are whether the aim to prevent violence is achievable and if not whether interferences with private and family life can be justified