Domestic violence protection orders when the victim is not supportive

The Chief Constable of Cleveland Police v Barry Jemmett [2024] EWHC 1172

Executive summary

In an appeal by way of case stated, Fordham J held that the magistrates’ court, when considering whether it was “necessary” to grant a domestic violence protection order (‘DVPO’) pursuant to section 28(3) of the Crime and Security Act 2010 in order to protect a protected person from violence or a threat of violence, must consider any opinion of the protected person of which it had been made aware. However, the power to issue a DVPO arises even where that opinion is absent or disagrees with the necessity for a DVPO and, any future engagement by the protected person with third-party support should not be the basis for determining a DVPO application.

Background

Cleveland Police applied for a DVPO following a report of domestic violence. The stated case included in the factual background that the protected person (‘SW’) was the long term partner of Mr Jemmett (‘BJ’). SW alleged BJ bit her and she had hit him and BJ had headbutted her the week before. SW refused to make a complaint or allow photographs to be taken of her injuries.

This was the ninth incident of domestic violence which had been reported to the police. A previous restraining order was repeatedly breached by BJ, (for which he had served a custodial sentence). Efforts were made to contact SW without success regarding the incident. PC Clark opined this was because SW “has already expressed she is not willing to support a prosecution”.

The judge found that, on the balance of probabilities, BJ had been violent towards SW. The judge then considered the necessity of the DVPO, noting that SW did not want either the help of a support agency or access to the help of a support agency and, when a restraining order had been in place and BJ was in custody, SW did not avail herself of any help. Consequently, the judge did not consider a DVPO was necessary.

In making this decision the judge had regard to a line of cases concerning restraining orders culminating in R v Brown [2012] EWCA Crim 1152. In that line of cases, the court struck out restraining orders where the victim was not supportive.

The stated case

The judge asked the High Court the following questions by way of stated case:

1. With regards to the second part of the two-stage test regarding necessity, to what extent should the court (a) consider the views of the person to be protected, and their lack of intention to engage with other agencies, as a factor in deciding that the DVPO is necessary and (b) consider the express statutory ability to make a DVPO where the complainant does not consent to the same?
2. Is there a material difference between the nature and purpose of (i) DVPOs and (ii) criminal restraining orders?
3. In all the circumstances, was the decision to refuse the application permissible and/or reasonably open to the court?

Law

a) DVPOs

Pursuant to sections 24-28 of the Crime and Security Act 2010, for a magistrates court to issue a DVPO, the bench/judge must:

1. Be satisfied on the balance of probabilities that the defendant has been violent towards, or has threatened violence towards the protected person; and,
2. The court thinks that making the DVPO is necessary to protect the protected person from violence or a threat of violence from the restrained person.

When considering 2 the court must consider “any opinion of which the court is aware” of the protected person and, the court may issue a DVPO where the protected person does not consent to the issuing of the DVPO.

b) Restraining orders

In a line of cases culminating with R v Brown [2012] EWCA Crim 1152, the court struck out criminal restraining orders because they would prevent the continuation of a relationship against the express wishes of the victim. The criminal courts did not permit the court to protect victims of domestic violence against the consequences of decisions freely made.

Decision

The court answered the stated case questions with the following replies:

1. The court must consider any opinion of the protected person but it must be recognised that the power to issue a DVPO arises even where that opinion is absent or contrary to the application. As for future engagement, this prediction should not be the basis for a decision.
2. There is a material difference between the law on restraining orders and DVPOs. The restraining order case law is inapplicable to DVPOs and does not assist.
3. The decision to refuse the DVPO application was not legally permissible.

Comment

DVPOs are designed to provide a safe, short term period in the aftermath of violent domestic abuse. One distinct purpose is about promoting and protecting the protected person’s autonomous decision-making. However, that purpose is not a function of what any decision may be, or how it may be approached.

Additionally, this case makes clear that the imposition of a DVPO should not be attributable to, or the responsibility of, the protected person. The fact that they may not support the application or engage in the process should not impact on whether a court decides the statutory test has been met.