Posted on 3rd February 2014

The recent report of Her Majesty’s Inspectorate of Constabulary (HMIC) on the 43 different police forces across England and Wales highlights systematic failings in the way the police deal with victims of domestic abuse. This will come as a major disappointment to all victims of domestic violence and the agencies who strive to support them in reporting such abuse.

Findings from this report indicate concerns, regarding police officers lack of knowledge or experience in spotting dangerous patterns of behaviour, but more worryingly, from a lawyer’s perspective, a failure by some forces to collect evidence properly. The Home Secretary is desperately trying to tackle the findings of this report, head on, by emphasising a raft of measures being rolled out within the Criminal Justice System to provide better support for victims of domestic violence (like Clare’s Law and Domestic Violence Protection Orders). Nevertheless, as family lawyers, we frequently deal with those victims of domestic abuse, who either have not found justice in the criminal system and, therefore, look to the family court for alternative protection and remedies, or have successfully come through the criminal justice system, and now need the added protection of the family court powers, to deal with the impact of domestic violence on the arrangements for children within the family.

Protection and legal remedies to be found within the family court (like Non-Molestation Orders and Occupation Orders), for which legal aid is still available, can only be granted if there is evidence to support such allegations of domestic violence on the balance of probabilities and, whilst all victims of domestic abuse will welcome the scrapping of the £75 family court fee for issuing such applications (due to come in at the same time as the single family court on 22nd April 2014), legal aid being granted to make applications involving the victim’s children is dependent on there being evidence that there is a risk of domestic violence, or that the child, to be subject to the order, is at risk of abuse from an individual who would be party to the proceedings (usually the other parent).

Now the type of ‘evidence’ that the Legal Aid Agency wants to see usually involves asking the question of whether or not the victim has reported such abuse to the police (for the full list see Regulation 33 of the Civil Legal Aid (Procedure Regulations) 2012), so, for victims trying to access alternative remedies in the family court, what they have reported to the police, and how the police dealt with their complaint, will become immediately relevant.

All legal professionals working within the family court system are acutely aware that it takes a huge amount of courage for a victim of domestic abuse to make the decision to report an incident of abuse to the police, and that, statistically, many incidents of unreported abuse will have occurred before a decision is made to call the police. This, in itself, is another reason why the HMIC report makes such sad reading.

It is fair to point out that in Leicestershire, for example, the service to high risk victims is described as a good service, but for those victims assessed as medium and standard risk, the service is less consistent.

When a victim of domestic violence does make the decision to make that call, it is important that they have an understanding of the process they are about to become involved in, both in the criminal and family justice systems. Here are some practical tips from a family lawyer’s perspective:

Reporting an incident:

a) it is extremely important to understand that all 999 calls to the police are recorded and that a transcript of that call and/or recording can be obtained to establish the exact detail of what is said to have occurred during or soon after an incident;
b) when first speaking to an officer he/she will record details in their pocket notebook so it is important to give the officer as much information as possible including details of what happened and any injuries and whether there were any witnesses;
c) the officer should be undertaking a DASH risk assessment of the victim during this period (Domestic Abuse Stalking Harassment, risk assessment tool), which should be filled in by the officer once he/she has established what has happened;
d) it is also important for you to take down the officers details and for you to ask for the local domestic abuse liaison officer (sometimes known as the Independent Domestic Violence Officer for high risk cases) to get in touch with you so that you can be supported through this process;
e) when you make a statement to the police in writing make sure you check that you agree with the contents before you sign it;
f) in some very serious situations, a decision may be may to record your version of the incident by video – it is important that this is done soon after the event but also at your pace;
g) if English is not your first language, ask for an interpreter to be present to assist you;

Injuries

h) if you have any injuries, then the officer should be making arrangements to take photographs of your injuries (maybe even on a bodycam worn by the officer or digital camera);
i) if the officer does not do this immediately, you should take photographs of your injuries, even if it is on a mobile phone, as this way important evidence of your injuries will be preserved;
j) if you have injuries, it is really important that you either attend A&E or your GP surgery, so that a medical professional has witnessed and recorded the injuries that you have sustained, and you have also formally reported the details of the incident to them by telling them how your injuries were sustained;

Witnesses

k) unless an incident of domestic abuse happens in public (which is not often the case as it is usually in the home) it is unlikely that you will have any independent witnesses. You may not have any witnesses at all;
l) alternatively you may have friends who you have confided in about abuse you have suffered over the years and who can report what you have told them, you may have witnesses who can described how you were in the immediate aftermath of an event;

Bail Conditions

m) It will be important for you to regularly keep in touch with the investigating officer, because you will need to know whether the alleged perpetrator has been charged, and whether there are bail conditions in place – if a decision is made not to charge the perpetrator immediately, there may still be bail conditions whilst the matter is investigated;
n) If no further action is taken by the police there will be no bail conditions for the perpetrator to stay away from you, and that is when you will need to contact a family lawyer to think about applying for protection through the family courts, if you continue to feel at risk of harm;

Other evidence/support

o) It is important to note that rules of evidence in the family court are different to the criminal court. In the family court, the general rule is that if evidence is relevant it is admissible – so even recordings in a diary of incidents of domestic abuse can be relied on;
p) Support accessed through agencies like Woman’s Aid and also social services is also important and detail given to them about incidents can be used to corroborate what has been alleged to the police.

Ultimately the act of reporting an incident to the police (even if the victim does not feel able to pursue it or because the evidence is not sufficiently cogent) at least has the two-fold effect of getting on record the fact that the victim of abuse has raised the alarm and the concern about the alleged perpetrator’s behaviour within that relationship.

Written By Nassera Butt, Family Practitioner at No5 Chambers

NoVate Direct Legal Solutions can help you find the right legal expert in all areas of family law, including domestic violence. To speak to us, please call on 0845 201 0160 or complete a contact form.