Publication - Research and analysis

Protective orders for people at risk of domestic abuse: consultation analysis

Published: 31 Jul 2020
Directorate:
Justice Directorate
Part of:
Children and families, Law and order
ISBN:
9781839609176

An analysis of responses to a consultation on the creation of new protective orders to provide greater protection for people experiencing domestic abuse

30 page PDF

453.3 kB

30 page PDF

453.3 kB

Contents
Protective orders for people at risk of domestic abuse: consultation analysis
Power for Police to impose an immediate protective order without prior court approval

30 page PDF

453.3 kB

Power for Police to impose an immediate protective order without prior court approval

2.1. The consultation asked two questions seeking views on whether the police should have a power to impose a protective order without first seeking court approval. The first sought views on whether the police should have such a power:

Question 1: Do you think the police should have the power to bar a person from a home that they share with a person at risk of domestic abuse for a period of time and prohibit them from contacting that person, without the need to obtain court approval?

2.2 The great majority of respondents to the consultation supported providing the police with a power to make an 'emergency' protective order without being required to first seek the agreement of a court. Of those respondents who offered a view, 61 respondents supported providing the police with these powers, while only 6 respondents were opposed to doing so. A further 4 respondents said that they were unsure.

2.3 Those who supported providing the police with a power to make such orders included all 8 of the victims' groups who responded, and all but one of the Gender-based Violence/Violence Against Women Partnerships One victims' group respondent commented:

"It is absolutely crucial that there's an immediate short term solution available. EBOs would allow police to take the necessary proactive steps to protect victims in their home, without the victim having to leave (perhaps with children) for their own safety…It will allow the Police and other key support agencies an opportunity to establish the level of risk and give the victim much needed time to consider her options and choices and for other protective procedures to be implemented."

2.4 Respondents to this question raised a number of points about how such a power should be implemented, including the importance of ensuring that appropriate training and guidance on the use of such powers is put in place for police officers. One respondent suggested that the power to make such orders should be reserved to officers who have had specific training issues relating to the use of protective orders.

2.5 Of the 6 who were opposed to providing the police with such powers, 3 were individual respondents, who highlighted what they regarded as the risk that the existence of such powers would encourage people to make false allegations. One justice and legal sector respondent highlighted the importance of judicial oversight of any power to remove suspected perpetrators of abuse from their own home. They commented:

"The courts play an essential role in ensuring fair, transparent and proportionate exercise of powers. This is particularly important in situations where preventative measures are being sought, where an individual has not been charged with any offence. The orders being proposed could result in a significant restriction of an individual's right to private and family life and right to enjoy their property; and should therefore be handled with proper oversight and due process. Were this power to exist it would require to be a truly exceptional situation and would need to be subject to judicial determination at the earliest opportunity"

2.6 A second question asked respondents for views on the length of time for which any order imposed by the police should have effect before requiring to be confirmed by a court.

Question 2: If the police are given a power to put in place measures to protect a person at risk of domestic abuse for a period of time, we would welcome views on how long that period should be.

2.7 There was a wide range of views on the question of how long any police-imposed order should run for before requiring to be confirmed by a court. The consultation asked respondents how long such orders should run for without setting specific alternative options available. As a consequence, respondents' answers varied from "a maximum of 48 hours" to others who were of the view that such an order should have indefinite effect. In broad terms, the answers given can be broken down as follows:

Time order should have effect for before requiring confirmation by court Number of respondents
Up to a week 13
One week to two weeks 9
More than two weeks, up to a month 11
Longer than a month 7

2.8 A number of respondents highlighted concerns that the 48 hours which Domestic Violence Prevention Notices issued by the police in England and Wales can run for is insufficient to enable a case to be prepared for court. For example, one victims' group respondent commented:

"This period should be long enough to allow the victims of domestic abuse and any children in the household to feel safe, access adequate support and assess their options. The 48-hour period in England is viewed as too short to be effective."

2.9 In terms of the length of time that respondents considered was sufficient for a police order to run for before being required to be confirmed by a court, there was an extent to which those who focused on the length of time required by the police to prepare a case for court tended to propose a shorter period of time than those who considered that work needed to be undertaken with the person at risk to assist them in determining their longer term accommodation options before a case to came to court. For example, one justice and legal sector respondent commented:

"…the period of time before court approval for that order is sought should be long enough to enable the victim and their family to establish constructive engagement with the police and relevant partners. The implementation of an appropriate investigative strategy and assessment of further enquiry opportunities would also be key to providing the court with an informed application and meaningful information on which their determinations for additional measures can be made. Based on the responses made, this period of time is generally considered to be a period of no less than 7 days"

While a victims' group respondent suggested a longer time period:

"…there should be an initial barring period of 21 days, to allow exclusive entitlement to the home for women and children, with the opportunity to seek an extension to this period, through the court. This will also work towards securing women and children's safety and allow sufficient time for support to be provided to the woman and her children, as well as allowing her adequate time to explore her options."

2.10 A number of victims' group respondents said that, with regard to the question of how long any police-imposed barring order should have effect for, in cases where, for whatever reason, a court was unable to hear a case within the required time period, it should be possible for the police barring order to have effect until a court hearing could be scheduled. On the other hand, one respondent from a justice and legal sector background highlighted concerns that too long a period could raise human rights issues if an alleged perpetrator of abuse was unable to challenge the imposition of an order in court.


Contact

Email: patrick.down@gov.scot