Tackling domestic violence
Claimant sought judicial review of Surrey Police’s Domestic Violence Protection Notice issue and magistrates' Domestic Violence Protection Order…
R (on the application of K) v (1) Chief Constable of Surrey Police (2) Staines Magistrates’ Court
Before Andrew Thomas QC sitting as a Deputy High Court Judge
Royal Courts of Justice
6 November 2017
The claimant sought to have the Surrey Police’s decision to issue a Domestic Violence Protection Notice (“DVPN”) and the magistrates’ decision to make a Domestic Violence Protection Order (“DVPO”) judicially reviewed.
Permission was refused and the application dismissed.
Background and issues
The police received a 999 call from the victim (“V”) who alleged that the claimant (“K”), her partner, had assaulted her. The police attended and V disclosed that she had been slapped about the face and pushed against a wall and to the floor. Two children were present in the house. The children told the police that they were scared when their parents argued. K was arrested. He answered no comment to questions in interview. The decision was taken not to charge K due to there being insufficient evidence. A superintendent (“the AO”) authorised a DVPN to be served on K prohibiting him, variously, from molesting V, entering the house and going within a specified distance of the house.
The AO relied upon V’s witness statement, the 999 transcript, the account of the children and the fact that V had disclosed the assault to a neighbour prior to the police’s arrival.
K argued that the AO had not obtained or taken into account his views on the DVPN, had not obtained the views of the children on the DVPN and had fallen into error in relying on V’s witness statement, knowing that she was not going to attend court.
K further argued that the magistrates fell into error in failing to adjourn the DVPO application hearing and in speculating as to the reasons why V had retracted her statement and not supported police action.
Whilst paragraph 5.2.5 of the 2016 Home Office Guidance (“the guidance”) states that AOs must not rely on the victim’s statement if the victim is not going to attend court, this restriction is limited to a formal witness statement. Evidence such as a 999 call, the victim’s demeanour, and what the victim says or does at the scene witnessed by an officer or other witness, is not excluded by the guidance and can be relied upon by the AO in deciding whether to authorise a DVPN. There is no blanket prohibition on relying on all evidence emanating from the victim – such a prohibition would emasculate the purpose of the statutory regime.
Police officers are required by section 31 of the Crime and Security Act 2010 (“CSA”) to “have regard to” guidance issued by the Home Office when issuing a DVPN, but the guidance is not mandatory. The guidance applies only to the police and not to the court.
Where children are present, officers can reasonably be expected to obtain a factual account from them but, depending on their age, are not to be expected to discuss the issue of a DVPN with the children.
The balancing act, with K’s Article 8 rights weighed against V’s (and the children’s) Article 2 and Article 3 rights, is inherent in the legislative test which requires a DVPN to be “necessary”. The AO was able to demonstrate that he considered everything he ought to have considered, and his departure from the guidance in relying on V’s statement was justified by the presence of other supporting evidence. In any event, there was sufficient evidence absent V’s formal statement to give rise to grounds for issuing the DVPN.
Magistrates’ courts are entitled, on an application for a DVPO, to take into account the possible reasons why a victim does not support the application, or why they may withdraw their support. The regime under the CSA is designed to reflect the fact that domestic violence victims may be reluctant to engage by providing short term and immediate relief to the victim.
K was legally represented at the application hearing and no application to adjourn the proceedings was made.
This decision recognises that DVPNs are a powerful, if draconian, tool for the police to use as early and immediate intervention following a suspected domestic violence incident. AOs must consider all the information and evidence available to them, which can include the victim’s statement even where the victim is not going to attend court. As this is contrary to the guidance, AOs will be best served by recording clearly where they have departed from the guidance, in instances where they do, and the reasons why.
Effort should be made by officers to include as much further evidence outside the victim’s statement as is possible. This will include things like 999 call transcripts (suitably redacted), witness statements of officers who, for example, witnessed the aftermath of the incident and recorded the victim’s disclosures and demeanour.
Whilst not fatal to the lawfulness of a DVPN, officers should ensure that all parts of the forms (the DVPN and the Superintendent Authorisation form) are fully completed with the views of the parties or, if those views have not been obtained, the reasonable steps taken to obtain those views. This simply allows a reviewing court to easily see that those matters were considered.
Weightmans LLP acted for Surrey Police.