A person guilty of an offence under this act is liable on summary conviction to prison terms, which varies from six months to five years or a fine or both. Criminal Justice Act 1988 (Part 2 Section 23(3b)
The seldom used part 2, section 23 of this act facilitates the criminal prosecution of perpetrators of domestic violence (or any other criminal offences where most victims for reasons best known to them chose not to co-operate or support the criminal prosecution of the offenders) by providing for the submission of a written statement (taken by the police from a victim of domestic violence at the heat of the actual offence) in the absence of an oral testimony or statement from a victim of a criminal offence (who has withdrawn or refuse to co-operate with the law enforcement agency and the prosecution).
This provision requires that a written statement is admissible in the interest of justice and that admitting the statement would not be prejudicial to the defendant. Nonetheless, this section has been rarely used by the police and the CPS on the ground that the absence of a witness makes a case practically untenable. Police & Criminal Evidence Act 1984 (Section 25) This legislation empowers police Officers to arrest where they have "reasonable grounds for believing that arrest is necessary to prevent the relevant person causing physical injury to himself or any other person …
or necessary to protect a child or other vulnerable person" Critique Concerns have been expressed about the non-chalant attitude of the police in prosecuting under the criminal code offenders who have acted in breach of restraining orders pronounced under the Protection from Harassment Act 1997. The police attitude is informed by the parallel existence of a civil remedy, which the victim could seek alternatively. And reinforced by a male-chauvinistic perception of domestic violence as a 'domestic matter' between partners and not one that the police should get embroil with.
Although the Home Office through Circular 60/1990 and other initiatives have tried to engender a change of attitude within the police force – and this has started to bear some positive results. In addition, I would strongly suggest a change in the descriptive terminology of this sort of crime from domestic violence to 'anti-family behaviour' or 'violence against relatives'. The word 'domestic' in common day-to-day parlance denotes something private or a private affair; it is no surprise then that the general public's cognitive understanding of 'domestic violence' is a far cry from the reality peculiar to this form of human behaviour.
The provisions within PHA provides the respondent with the ability (under certain conditions) to apply to the court to vary or terminate the restraining order but there isn't any stipulation to inform the victim or seek the opinion of the victim when an application is made to vary or end a restraining order. Despite the seemingly abundant power given to the police to arrest and prosecute domestic violence offenders, the ratio of arrest and prosecution relative to the police recorded incident of domestic violence beggars understanding.
The police and the CPS are somewhat frustrated by the lack of co-operation from victims, insufficient evidence and the unwillingness of judges to pronounce reasonably long custodial sentence against persons found guilty of domestic violence related offences. I would like to suggest a "three strike" police action regime on domestic violence cases. This should be backed up by a government policy pronouncement on 'three strike' initiative. When called to an incident, the police should automatically arrest the 'abuser' where they have reasons to believe the abuser have caused or could cause injury to himself or others.
The 'abused' should be discreetly asked to make a statement. The abuser should be kept in police remand until such time that it would be reasonable to release him. He should be issued with a warning and information booklet on the government and police policy on domestic violence which states clearly that the police would prosecute him on the third occurrence of any violent conduct against the victim (his spouse and children) regardless of whether the victim supports the prosecution or not for the victim would be compelled by law to testify against him.
For this policy to work judges, police officers, CPS staff, probation officers should be avail of the new initiative and the thinking within government that informed this policy and the desired effect, which the government would like to attain. REMEDIES UNDER STATUTORY LAWS The Housing Acts 1985,1988 & 1996 Section 2 of the Housing Act 1985 & 1988 specifies the grounds for the possession of secure and assured tenancies respectively on the ground of domestic violence.
However, these provisions under both acts have been amended by the Housing Act 1996 (section 145 &149), which provides a broader ground for possession in cases of relationship breakdown as a result of domestic violence. The act stipulates that a court (usually a county or high court) may grant possession if: > A spouse or cohabitee has left an accommodation because of violence by the partner and the court is satisfied that the person who has left is unlikely to return.
> A threat of violence may have been directed against the person who left or against a member of that person's family who was living with them at the time. Homelessness Act 2000 & Housing Act 1996 (Part VII) These legislations makes it a statutory duty for a Local Authority to accommodate a person or household who is homeless or threatened with homelessness if it would not be reasonable for such person to continue to occupy an accommodation if it is probable that this would lead to domestic violence from an associated person. Section 177 of Housing Act 1996 states:
It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him, or against (a) A person who normally resides with him as a member of his family, or (b) Any other person who might reasonably be expected to reside with him. CONCLUSION Without any shred of doubt, the domestic violence law and practices reflects the prejudices endemic in our society. There will continue to be the debate on whether the lasting remedies to domestic violence lies within the civil and criminal law.
It has been argued that the government effort in providing reinforced civil injunctive remedies has been nothing but a diversionary attempt, which reinforces and reaffirms the popular belief that marital violence is quite different from other violent crime. On the other hand, criminal legislation on domestic violence have proved ineffectual and toothless as custodial sentences of offenders are very rare – which leads us back to square one! Experience and practical reality has shown that neither civil nor criminal law can adequately deal with the scourge of domestic violence.
Only a comprehensive and concerted approach involving multiple agencies and relevant statutory organizations can even begin to deal with the problem. The Law Commission Report of 1992 states: "Domestic violence is not simply a legal problem which can be eradicated by appropriate legal remedies. It is also a social and psychological problem which can be eliminated only by fundamental changes in society and in attitudes to women and children While legal remedies are an attempt to alleviate the symptoms of domestic violence they can do little to tackle the causes"
Cowen, D.(1999) Housing Law & Policy, Macmillan Law Masters series : Basingstoke Arden, A & Hunter, C (2003) Manual of Housing Law, Thomson, Sweet &Maxwell: London Bird, R (2002) Domestic Violence Law & Practice, Family Law Series: London Hague, G & Mallos, E (2001) Domestic Violence – Action for Change, New Clarion Press: Cheltenham Home Office, 2003, "Safety & Justice: The Government 's Proposals on Domestic Violence" Home Office, London Home Office, 1999, 'Living Without Fear – An Integrated Approach to Tackling Violence Against Women' Published by The Women's Unit, Cabinet Office.