Hello and welcome everybody. I'm pleased to welcome you to today's session through Date law. This is session three of the course on Domestic Abuse Act 2021 and somebody key developments as you know them by now. This course, what I'm looking at is sort of key themes. So adding this act with a view to them, bringing you up to speed with what both Children and family practitioners need to be aware of the last time you remember I spent some time looking at the position uh with the domestic abuse protection notices and orders. And also we looked at the position with the domestic violence disclosure scheme in particular today. What I'm going to be doing is talking to you about the position would cross examination and how that's changing as a result of this act, special measures, participation directions and also some of the new offenses this act has has brought him basically. So I'll be going through that with you. And as always there is reference to various statutory provisions. Es I've put the copyright acknowledgement there for you. Right. So let's look at a position with extending special measures. So this is where you've got the aim of this act which is to provide for the fact that domestic abuse act is there to provide for legislative change. So as to them provide for the automatic eligibility for special measures in domestic abuse cases and therefore by doing that what it's done, it's actually removed a burden on the victims to prove that they are in fear or distress because at the moment if you look at the participation directions in family cases, Part three, A practice direction three A there is a requirement for the court to consider vulnerability and then what you do find is at the moment when you're seeking directions from the court, you having to demonstrate that declined is uh vulnerable. They are fearing harm or distress in the way in which the cases being dealt with or the court proceedings because of the involvement of the other party. And therefore that's where you're asking for participation directions. But what this new legislation is providing for is when you've got cases where one is alleging domestic abuse or is a victim of in that case, then they will be automatically entitled to get special measures uh if appropriate, and whatever which one, whichever ones are available and necessary for them to assist them in participating. And this will be in relation to criminal civil and indeed family cases also. Okay, so in the family court and the family court will be under duty to consider whether parties or witnesses of vulnerable if sold to make the provision available in that regard. Okay, and this will be relevant then, like I say, not just in criminal cases, but also your family and civil proceedings in that regard. Okay, so, taking this further looking at as as many of you will uh in family cases, then it actually creates an assumption a presumption. So, you can see here section 63 subsection three of the act provides that in family proceedings, court would then provide that word, person is or is at risk of being a victim of abuse carried out by a party to the proceedings, a relative our party to proceedings. So indeed a witness in the proceedings, that it is to be assumed that the following matters are likely to be diminished by reason of their vulnerability and that is the quality of their evidence. And secondly, whether the person is a party to proceedings, that party's participation. So, we're having to therefore assume that were personally is at risk a bigger victim of in those circumstances, that it is assumed that the quality of the evidence and their participation is likely to be diminished. And therefore, the implication of that is the court would then need to give God to what participation directions, if any, would be required. Okay, so that's where that comes into play. And therefore when you supporting victims, I would suggest that it's necessary for you then to think about the various forms of participation directions that may of course be required, and then to look at those and then to make appropriate representations for the implementation of those. So, this could include, for example, screens being provided at court to prevent the alleged victim being seen by the alleged perpetrator, for example, separate waiting areas at court, for example, separate entrance or exit. The court building, for example, could be that participation remotely using video link, for example, zoom M. S. Teams and as you can imagine therefore the way in which parties can participate in that so that it would be important and for you to be able to demonstrate them that people are aware of what support is available for them, what can be made available to them. So they have a proper voice and it can sure they have a voice and maybe to participate fully in those proceedings. And therefore you can see how this ties in with Part three A. and practice direction 3 8 supplementing the family procedurals. Now, special measures and the criminal caused under is the draft national guidance which specifically talks about the automatic eligibility for complainants relating to uh matters of domestic abuse to be considered in criminal proceedings. Okay, in that regard this means that they don't therefore need to demonstrate fear or distress to be eligible for special measures. Okay, so that's the important thing there and as I say, in family cause the domestic abuse dressed as regardless also provides for that as well. So hence, as I say, there will be deemed as vulnerable automatically deemed as vulnerable victims of abuse for the purposes of therefore determining whether or not a participation direction should be ordered not. So you can see the thinking behind that. Okay, and you can see the same thing applies in that regard. So it raises that assumption as I say, okay, now the other provisions I want to discuss with you is that relating to prohibition of cross examination. So this is going to be another major change to the existing position. Okay, so this is now contained within section 50 65 of the domestic abuse Act in family Proceedings in Section 66, a domestic abuse act in the case of civil proceedings. So what's going to happen is if we look at this insofar as family procedures are concerned is now a new provision for b to the matrimonial And family proceedings active 80 four. So that now that provision provides for these various Elements there. So we got a 31 hour which is prohibition of cross examination in person, Where does the person is a victim of offenses? 31 S, which Is if the person is protected by injunctions 31 T if there's evidence of abuse and 31, you if you're looking at some other cases. So how does this actually fit in? Well, let's put this into context. And what you're going to need to do is to make sure that when you are supporting victims same family cases, you need to now be able to emphasis the use of an application of these, uh which I would suggest a long overdue. So let me give you an example, let's say you've got the Type of situation as what we had in the case of PS and BPD is 2018 High Court decision. Now that was a case where by the father of the young child saw contact child arrangements, spending time with mother opposed. She raised allegations of domestic abuse and this is where the court did decide to list a matter for a finding of fact hearing. And the mother was asked to specify in particular her two most significant allegations that she was relying upon which she did. She alleged that the father attempted to strangle her and secondly, she alleged that he raped her. So to obviously very serious allegations, she had the benefit of lawyers who were representing her at defining a fact hearing as for the father, he was unable to get public funding and he was a litigant. Persons who was willing to case himself. He happened to be a police officer. Now he wanted to cross examine the mother on those exact issues that she raised against him for the purpose of testing the evidence, but the judge put him prevented him from doing so. The judge said, I'm not going to let you cross examine her mother. You give me your questions and I will put those to her mother on your behalf. So that's what a judge did. But the judge the father argued was not as robust as he should have been doing that and findings were made on appeal. The court did say that the law currently doesn't say that the judge is to not allow the alleged perpetrator as a litigant in person to cross examine. Each case very much sits on its own case, there is on its own facts, there needs to be a certain grandeur is hearing to determine whether or not they are going to be in a position to cross examine. But if the judge takes it on himself or herself to put the questions on behalf of the alleged perpetrator, they need to be robust, they need to be appropriate and testing the evidence and if that's not being done. And of course the hearing is falling short of what's fair. But the difficulty, as you'll see at the moment is there is no provision for enabling the alleged perpetrator to have the benefit of an advocate to put the questions to them. If they don't satisfy a lesbo test in terms of being eligible for public funding, unless they can afford a lawyer themselves. You're left with a situation where effectively a litigant in person. So how do you deal with that? Well, under the new law, this is what it's what it's going to entail. Under the new law, no party to the proceedings who has been convicted of or given a caution for or is charged with a specified offense, which is not yet defined in the act, but I would have thought it's going to most likely cover various offenses against the person. That person will not now be able to cross examine him personally, witness who is the victim or alleged victim of the offense. So in this kind of example that I'm looking at is if the person has been convicted of or given a caution or is charged with a specified offense, they will be prohibited from cross examining the victim. Similarly, the victim will be prohibited from cross examining that person in person themselves. They would need to have a lawyer do that for them. Mhm. So for the victim then it will mean that your family proceedings, they would not be expected to cross examining person. A witness who has been convicted of a court given a caution for he's charged with that offense in that regard. Okay, so that's that's so it would be very important to ensure that the person is aware of this. Obviously they can feel reassured. Now what if there's an injunction in place? Okay, So what if the father and the example I gave you which is to cross examine the mother, let's say he's not subjected to a caution or an offense or specified offense, but instead there's a protective injunction against him and unnoted protective injunction against him from the mother may be anomalous station under occupation order. Well, the new law says that he will be prohibited from cross examining the mothering person himself in that situation. And as for the alleged victim, it would mean that they won't be expected to cross examining person against whom they are protected by the unknown. Those are not his protective injunction. So again, very, very important to ensure that your clients or made aware of that fact. Yeah. What if the alleged perpetrator is such that he or she is not subjected to any of these offenses, hasn't been convicted. As I mean caution, there are no specified offenses. There are not prohibited on notice injunctions or evidence of domestic abuse, then what do you do? Well in that situation, it would mean that in fact we see is the court may then give a direction prohibiting that person. Cross examining could continue to cross examine a person in person in that regard to witness. If the police is police are satisfied that the quality condition or the significant distress condition is met and that it would be contrary to the interests of justice to give that direction. So if they if the judge is satisfied that the quality of the evidence that the witness will give will be diminished. If the person is allowed to cross examine them or it will cause them significant distress of the other person is allowed to cross examine them. Uh then the judge will be able to prohibit by exercising he's at his her discretion. They will be able to prohibit the complainant in that it's already alleged perpetrator from cross examining in those circumstances. There are similar provisions that are provided for in several cases also. So what do you do in that situation? So if the situation is where say the father is subjected to say a prohibitory unnoticed injunction, maybe a numbers station order occupation order because he will now be prohibited from cross examine her mother at the finding of fact hearing in the child arrangements order application. What is to happen if he doesn't have the benefit of a lawyer? What happens is a judge going to take on that responsibility? Well this is where there are these new provisions now and the provision is uh what that the court would then need to consider as to whether or not to assist the alleged perpetrator who will be able to get financial assistance from court funds to have a lawyer acting for them in cases where it alleged that they have subject to the other person to domestic abuse and say they are therefore seeking contact. For example, they will be able to have a lawyer in circumstances where where they are not eligible for public funding for example. So because of this, if you have a look at paragraphs 31 w 31 X 31 Y. And 31 said of the match morning family proceed exactly 1984 part B. It's made provision for this. So you can see the father and example been using, he will now have the benefit of a lawyer paid for by the court funds from H. M. C. T. S to enable the lawyer then to not represent him on all matters, but certainly to act as his advocate to be able to put those questions to the mother on his behalf on his behalf. So as to ensure that there is adequate and appropriate testing of the evidence going forward in that regard. So you can see this is a very necessary uh matter going forward and one that really is very long overdue and one that we've required uh for some time and therefore would suggest that this will ensure there is that equality of arms for both the applicant tender respondent in this matter insofar as these family proteins are concerned. So you can see the thinking behind us. Right, let's now spend some time looking at some of the new Offenses that this new actually domestic abuse after 2021 has brought in because there are a number of new offenses there. So part six of the Act covers this and that's offenses involving violent or abusive behavior. And the first one of these is section 21 of the domestic abuse act of 2021, which relates to the consent to serious harm for sexual gratification. That is not a defense anymore. So effectively this would be relevant where a person if they inflict serious harm on another person. The act specifically provides a section 71 provides that is not a defense that the victim in that case consented to the infliction of the serious harm for the purposes of obtaining sexual gratification. So therefore with that in mind there won't be a defense in that regard. Okay, there is an exception have under Section 71 Subsection four of the act, which provides that if the serious harm consists of always a result of the infection of the victim, was sexually transmitted infection in the course of sexual activity, and the victim consented to the sexual activity. The knowledge we believe that the defendant had a sexually transmitted infection. So that is a defense, but that's the only one in that regard. And the act also provides that it doesn't matter whether the harm is inflicted for the purpose of obtaining sexual gratification for the alleged perpetrator, alleged victim or anybody else. So that would be relevant in looking to see whether the consent is there or not. So that's to what offense, then there's also this Other provision under Section 72 of the Act, which now also provides for the offenses against the person committed outside the UK. And England Wales here. So this has the effect that if a person who is a UK national voice habitually resident in England Wales doesn't act in a country outside the UK, which amounts to an offense in that other country, if it would also amount to an offense if done here in England Wales, and then they will be guilty in England Wales of the offense. Okay, so putting it simply if you've got somebody who's habitually resident here, say in England and Wales. They call to spain, for example, for argument's sake and they did an act there, which is an offense there, which let's say he's also an offense here in England Wales, it was carried out here. Then once they do return to England, for example, they could then be found guilty of that offense, even though it wasn't conducted here, It was conducted overseas in Spain, for example. Okay, and if you look at Section 72 subsection two of the Domestic abuse Act of 2021 it gives you the list of offenses here, including many violent related offenses. So, if you have a look at that also, and then there's some other amendments that have come in. So you've got the provisions relating to non fatal strangulation and suffocation, which are now also criminal offenses. So this is particularly relevant in situations where the alleged perpetrators strangles or intentionally affects the alleged victim is breathing to control or intimidate them. And the reason why this came in is because it was found that, uh, it was becoming increasingly difficult to prosecute successfully alleged perpetrators because even though they may have suffocated somebody or deliberately affected somebody's breathing, if they were leaving no visible injury, then it was very hard he was finding to prosecute under other offenses under other crimes. So thinking behind this provision coming in, the act does say that it is a defense if it's shown that the victim in fact consented to a strangulation or other actor, but this will not apply with a victim suffer serious harm as a result of a strangulation or other act. And neither the alleged perpetrator intended to cause the victim that serious harm or as reckless as to whether the victim would suffer serious harm. So you can see it's a very, very limited defense insofar as that is concerned. That then brings me onto the position, controlling, Surrounding controlling or coercing behavior. Now, as you'll be aware, this was brought in back in December 2015, 29th December 2015 as an offense by Section 76 of these Serious Crimes Act Serious Crime Act of 2015. And this was brought in then specifically to deal with situations where people are in relationships where you got the victim and the perpetrator, they are connected at the time of defense and it's effectively taking the form of control and coercive behavior under part of a repeated or continuous pattern. And there's the statutory guidance which really sets out controlling and coercive behavior. So you can see it's very wide this behavior and it covers a whole range of acts designed them to make a person feel subordinate and dependent by isolating them from maybe all sources of support where you're exploiting their resources, depriving them of the means for independence for example and escape and really dealing with regulating their everyday behavior. So you can content consist of assaulting somebody, threatening somebody humiliating and intimidating them, threatening to harm them, punish them or frightening them. So you can see controlling, coercive behavior can also incorporate situations where somebody, somebody is depriving somebody of their means for independence of controlling them economically. For example, it could amount to that. And this is where recently the domestic abuse draft statutory guidance framework which was updated just last month. 1/6 of august which I referred to before, specifically gives you details various forms of behaviors within which are within the range of controlling and curse behavior. It gives you a long list of behaviors there. So it's certainly worth having a look at these when you get a chance and I'm just going to run through some of these with you. So like I say control, it covers controlling or monitoring the victims daily activities dictating what they wear, what they eat, where they eat, who they speak to, who to go to where they go isolating them from family and friends and professionals. So many of you in law earlier this year, we've had new case law, the case of F and Emma back in january this year by Mr Justice Hayden, there was a case of H. N. The case of March this year by the Court of Appeal relating to the use of scott schedules, for example, in domestic abuse cases Where one is relying upon controlling and coercive behavior and you can see in those types of cases this is whereby there may be various instance of controlling aggressive behavior by isolating the victim from family, friends and professionals who are they're trying to support them. For example, in that regard, intercepting messages and phone calls for example refusing to for example interpret hindering their access to communication okay. It could be on the mining their role as a parent or a spouse or parent preventing them from even taking medication, for example, accessing other forms of medical equipment, for example, using substances to even control the victim through dependency for example, in that regard. Okay, controlling their daily activities, for example, making them account for their time what they can wear where they can eat, what they eat, where they sleep and like they isolated them from friends and family in that regard. Okay, so you can see it covers a number of elements there in that regard. And you can see there for the concerns that can be raised. They're also using Children for example to control the victim by threatening to take the child away or manipulating professionals to increase the risk of Children being prevented from having contact for example, cycle without using pest control them, for example, harming them, threatening them alienating behaviours in that regard. They can see that a long, long list in that and also those of you who deal with Children. Family cases, attempt by one parent maybe to frustrate or limit the Charles contact with the other parent, for example, threatening to expose sensitive information such as sexual activity, sexual orientation, for example, threats of disclosure of as to gender identity to friends and family, for example, we're colleagues okay preventing the victim from learning a language threatening a precarious immigration status, for example, emotional abuse, spiritual abuse, economic abuse, which has, you know, has been brought in by the domestic abuse actually can see it's incredibly wide and hence why I thought it quite helpful to emphasis this to you. And this is where if you look at the draft guidance, draft statutory guidance of sixth of august, it does specifically say that this act that I mentioned that Section 76 of the serious crime Act of 2015 specifically provided for the fact that it introduced the offense of controlling the cursor behavior in an intimate family relationship because of the severe impact of coercive control, economic abuse, threats and abuse whether or not accompanied by physical abuse. And this offense then captures behavior between persons who are intimate partners or between former intimate partners. And that's the big difference in so far as what is now provided for. So, therefore picking up on that. What has this act done now to take this further? Well, if you look at Section 68 of the Act, The Domestic Abuse Act of 2021 it now provides that it's no longer a requirement for somebody to be convicted under this offense for the alleged perpetrator the victims to live together. So that's a big difference. So if for example, somebody, um, has, has been able to leave an abusive situation, then it may be that even in that case the former partner is still subjecting them to ongoing and controlling aggressive behavior post separation and therefore would be inappropriate not to be able to prosecute them in that situation. So therefore what this act now has done is it's extended the remit of the act in terms of prosecutions. So as to uh, when you're looking at, when people are personally connected, it now specifically incorporates a situation where people who are or have been in an intimate personal relationship with each other. Okay, so therefore where they have separated, but the alleged perpetrator is still continue to abuse them even after they've defended the relationship. For example, it still continues to include those people who are or have been married or civil partners or were civil partners or were engaged or engaged or were relatives, for example. So is that what the definition of those people who are personally connected in that regard? Who can benefit from this? Okay, so you can see specifically, then the act now has amended the controlling requested behavior offense to remove the requirement for living together requirement. So therefore you can specifically now apply to former partners, family members, regardless of whether the victim and the perpetrator live together. And this particular provision is due to come into play in spring 2020 two and therefore the government guidance will be updated with this. So, again, very, very important to bear that in mind. Okay, Right. Which other offenses then has this act brought in? But we've also got these other fantasies of disclosing private sexual photographs And films. This is section 69 of the Act and this is therefore extended the offense of disclosing private sexual photographs and films without the consent of the individual in the photograph of the film. An intention of causing that person distress. So you can see some of the cases that have been highlighted where sometimes people were um having photographs which there may have been sending, sending through, say, what's that, for example, or the social media and then where somebody that is disclosing those private sexual photographs and films without the consent of the other. But what this offense has done is actually taking it further. So now it provides for the fact that it's not just when somebody does disclose those photographs and films, but also where they threatened to disclose that material as well. So that incorporates the threats of doing that as well. So, therefore it's important to bear that in mind. Now, some of the provisions under this act will be very helpful for you. So, for example, section 80 of the domestic abuse after 2021, Which is going to be coming to effect on one October 2021. So very, very, very eminently bearing in mind we're looking at this course as of middle of September 2021, is that as from one October 2021, there will then be a prohibition un charging for the provision of medical evidence of domestic abuse. So what it provides for Section 80 subsection one provides that no person will now be in a position to be able to charge a fee or any other remuneration for the preparation of provisions of relevant evidence related to assessment of an individual carried out by relevant health professional in England Wales, uh in that regard, what does it actually mean? Well, first of all, most relevant health professional means any person, a medical practitioner who is licensed to practice okay. Under the act. And that information where you one would not be able to charge for that. Now could be any evidence that individual is always a risk of being a victim of abuse which is intention to support uh, the application by the individual for civil legal services or any evidence that individual is or the risk of being of domestic abuse especially finding directs. So, for example, at the moment, those of you who do public funding work. If you're acting for the client who seeks to get public funding by way of them demonstrating and satisfying the merits test one of the requirements under under the civil Legal Aid regulations amendment riggs is to gather evidence and get evidence of domestic abuse if they were to go to their GP for example, for the appropriate letter to confirm that the GP having had examined and I have seen them is satisfied that day out, the victim of abuse then of course that will satisfy the eligibility in terms of merits. But the GP may well charge for that. And that's where this provision is now coming in. So as to prohibit charging for the provision of medical evidence uh where that information is being sought to support an application for civil legal services. So that's the thinking behind that. Right. What I wanted to finish with today then is the act also wishes to bring in a great use of mandatory polygraph tests and the policy paper fact sheet of March 2020 looks specifically at this. So this was this idea that the government had of bringing in a three year pilot of mandatory polygraph examinations on domestic abuse perpetrators released on licence as being at high risk of causing serious harm. So what this act wants to do is to ensure that there is mandatory polygraph examinations on high risk domestic abuse perpetrators. Now, some of you may think, what are these, how did he's worked his polygraph uh, tests will effectively, what this examination does is it measures the person's physiological changes in the body when you test them. So you're kind of measuring their changes in their heart rate, for example, the blood pressure, there is spiritual rate and they sweat for example. And if there is any change to the normal rates of these, then that can indicate that this person is trying to be deceptive and therefore potentially lying. Uh and therefore that's why it's felt that they should be these mandatory interests done on persons who are high risk offenders of domestic abuse to see whether or not they should be in a position and to be able to be released into the community and the licence conditions there. So there will be an expectation then for those individuals to take this test three months, post release from custody and every six months thereafter unless the test is failed. Okay, and these tests have been successfully used in cases involving sexual offenders released on licence. Okay, so the act is specifically providing for section 76 of providing for the fact that in cases of domestic abuse uh, may well be then the use of these. But like say there will be a pilot program to enable us to be done. And therefore the implication for agencies going forward with offenders is this is then going to be used to monitor compliance with, for example, licence conditions, uh, doing testing uh, and the examinations will be carried out by experienced qualified probation officers. And in fact, the rates that the statistics show That there is an accuracy rate of about 89%,, which is very high. I would suggest with an estimated inconclusive eight of one. 11%. So you can see that certainly do serve a significant purpose. Right? Thank you very much for listening to be on this session. So what we're going to be doing is the final session. I'll be taking you through somebody elements of the Domestic abuse act, particularly looking at the position with housing. Local authorities support the role of the domestic abuse, uh domestic abuse commission in particular, and then putting together what the various commencement provisions are that we've got at the moment. So can I thank you very much indeed for listening. I hope that's been a useful session for you so far. And I speak to you soon. Thank you very much indeed. Bye for now.
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