Joint Q for Commissioners

Joint Q for Commissioners

Dame Vera Baird QC, Victims Commissioner

Nicole Jacobs, Domestic Abuse Commissioner

Nicole Jacobs and Dame Vera Baird QC sent a joint letter to the Lord Chancellor, Home Secretary and Attorney General concerned that “…despite increasing volumes of domestic abuse cases being reported to and recorded by the police, the numbers of perpetrators being convicted for their crimes has fallen.” Both Commissioners request a “rapid investigation” into the reasons.

The Commissioners explain their expectations for such an investigation:

The sudden drop in charging cases flagged as domestic abuse, against a backdrop of a rising number of cases being reported has set alarm bells ringing. This worrying trend appears to mirror what we have seen happening in rape cases over the last 2 years, with reports going up but charges now the lowest on record.

The investigation into why this has come about needs to be a priority, not least because it undermines all the good work being done to give reassurance to victims of domestic abuse that if they report, they will be supported and their perpetrators will be held to account.

The investigations must look at the whole process, from complaint right through to outcome in court or a decision not to charge, so that the reasons for the sharp fall in charges can be properly understood and addressed.

The investigation needs to be carried out by an independent body so that everyone has confidence in the rigour of the process and any subsequent findings.

Bhini Phagura, former solicitor, asks each of the Commissioners about their work, first, Nicole Jacobs, Domestic Abuse Commissioner.

Bhini Phagura

As a newly appointed Commissioner could you describe your remit and plans for your first 12 months?

Our remit, as set out in the Domestic Abuse Bill, is to monitor and oversee the provision of domestic abuse services, encourage good practice in the identification and response to domestic abuse, and to hold both local and national Government to account.

Over the first 12 months, key priorities have been to engage with sector partners, to learn about their priorities for the role of the DA Commissioner, as well as to build key relationships with Ministers and officials across Government. With the advent of the Covid-19 pandemic, we have pivoted to supporting joint working across the sector, escalating issues identified by partners on the front-line to national Government, and providing quick-time advice to Government Departments as they seek to respond to the surge in demand for domestic abuse services as a result of the pandemic.

We have also begun work to map domestic abuse services across England & Wales, to build our understanding of what currently exists and help to end the ‘postcode lottery’ of provision across the country.

As we start to come out of the pandemic, we are focusing on growing our small team and developing a longer-term strategic plan for the next few years and will be engaging across the sector and with victims and survivors to do just that.

What is the progress on enhancing The Domestic Abuse Bill (“the Bill”) and what are your primary concerns at this stage?

Some progress has been made in enhancing the Domestic Abuse Bill. We really welcome the inclusion of children within the statutory definition of domestic abuse and the amendment to explicitly outlaw the so-called ‘rough sex defence’.

However, we still have concerns and the Bill should go much further to meet the Government’s own ambition that this becomes a truly ‘landmark’ Bill. We would like to see:

■ Greater protections for migrant victims, including allowing those with No Recourse to Public Funds to access services, and introducing a clear ‘firewall’ between the police and immigration enforcement, to allow victims to safely disclose;

■ A broadening of the statutory duty, so that it encompasses the breadth of services available in the community as well as accommodation-based services;

■ The creation of a specific offence of ‘Non-Fatal Strangulation’ in recognition that the law does not currently reflect the seriousness of the offence;

■ The creation of a specific offence of threatening to share intimate images;

■ To extend the controlling and coercive behaviour offence to include post-separation abuse;

■ To create a statutory defence for victims of domestic abuse who offend as a result of their abuse;

■ The establishment of statutory paid leave and guidance for employers for victims of domestic abuse;

■ Recommendations from the Family Courts Harm Panel Review to be incorporated into the Bill, including reversing the ‘exceptionality’ requirement for a barring order, and provision to allow any changes to the presumption in favour of parental contact to be introduced following the Government’s review into this.

Part of the DA Commissioner’s role is to give recommendations to the Government and local bodies on how provisions could be improved. Are you able to share any of these?

We have not yet published any specific recommendations as part of our statutory powers. Instead, we have been writing to Secretaries of State across Government and working closely with officials to provide advice on specific issues as they have arisen. For example, we wrote to the Chancellor calling for emergency funding to support the sector (which was provided), calling for flexibility with funding streams, and to call for an end to the means test for legal aid for victims of domestic abuse.

A “victim of domestic abuse” now includes a child who meets the relevant test. Why is the treatment of children as victims, as opposed to merely witnesses, important and beneficial?

This is so important because it places children clearly within the remit of the legislation and demonstrates the understanding that children are victims in their own right, and not simply ‘witnesses’. The impact of domestic abuse on children is so severe it is vital that they are recognised as victims, which the Bill now does. Practically, the inclusion of children within the definition will also lead to a greater understanding by public authorities and frontline practitioners like the police and social workers, which means that they’ll be encouraged to recognise and respond more effectively to children experiencing domestic abuse.

Equally, Local Authorities and their partners will better recognise the importance of ensuring child victims have access to the support that they need.

How soon could we see the conviction rates for perpetrators of DA reflect the changes you seek?

This will always be difficult to assess – but as data is published by the CPS with a (nearly) 6-month time-lag, we would not expect to see the impact of any changes that are made now until data is published in March 2021. Given that Government and criminal justice agencies are still seeking to understand why the criminal justice outcomes have dropped, it is unlikely that actions will be taken immediately, and the impact of Covid-19 will also skew the monitoring of outcomes through the criminal justice system. We will nevertheless be monitoring the publication of the CPS quarterly criminal justice outcomes data as it is published.

Dame Vera Baird QC is the Victims’ Commissioner for England and Wales. Bhini Phagura poses questions on the Domestic Abuse Bill.

Your ‘2019/20 Annual Report’ sets out your ‘Victims’ Commissioner’s plans for 2020/21’ – how confident are you in achieving those aims within the intended timeframe and what difficulties might you encounter?

I have a small team and an ambitious programme of work, but I am confident we can deliver everything we have set out in my Annual Report.

For example, we are soon to publish the findings of our survey of rape survivors’ experiences of the criminal justice system and we are making good progress on our review of the Special Measures allowed to enable vulnerable or intimidated witnesses to give their best evidence. We are planning to publish detailed proposals for inclusion in the long-awaited Victims’ Law and are scoping out our plans for reviewing the support being given to victims of fraud. I am heavily involved with the work on reopening the courts and engaging with the Probation Service on reforming the Victim Contact Scheme. These are just some of the many issues we are working on at the moment.

Like the rest of the country, the biggest obstacles for us are the restrictions arising from social distancing and remote working, although I feel we are overcoming these and are adapting to the “new normal”. A significant challenge is making sure we maintain high levels of engagement with victims and the charities who support them, something I am personally very committed to.

The DA Bill intends to end cross-examination of domestic violence victims by perpetrators – what will be the positive impact of this provision? It is well understood that in order for victims to be able to give their best evidence, it is imperative that they are questioned by an independent person and certainly not by the person they say they have been abused by. Defendants in the criminal courts have been prohibited from cross-examining their ‘victims’ in domestic abuse cases since 1999. It is utterly perverse that in the Family Courts, they have still been permitted to do so. Preventing this from happening can only be a positive step and will lead to victims having a far less traumatic time at court. It will enable victims to give their best evidence to the court and prevent perpetrators of abuse intentionally using the Family Court process as a mechanism to further abuse and intimidate.

What is risk that your progress could be delayed due to pressures on other stakeholders, particularly given the current pandemic?

Of course, the Covid pandemic has meant that many organisations are in crisis. Organisations have understandably been focused on the pandemic and providing services in ways which they were unable to anticipate and which they were not adequately funded for. We are working with these stakeholders to ensure their views and needs are met.

We have consulted and listened, we have made the case for greater funding and based our expectations in realism. We have pressed for the processing of emergency funding to be expedited; for government agencies to work more collaboratively to prevent delay and duplication; for Government deadlines on consultations to be pushed back and worked with stakeholders to ensure they have the space to reflect and consider.

We also need to be better at anticipating future pinch points, for example, when children went back to school, it was inevitable there would a surge for help from victims of abuse of all forms, which would have a knock-on effect on third sector stakeholders as they tried to meet demand. This will continue as the pandemic continues and we are already anticipating the longer-term effects.

BAME and migrant women have been identified as disproportionately affected by domestic violence V 1 ] Is there any more immediate action to support these groups?

Covid has demonstrated the vulnerability of the sector, and this has been particularly acute for specialist and BAME services, who have been consistently under-funded over many years. Access to remote working has been very difficult, and they are not resourced to respond to any surge in demand for their services.

It has also increased the vulnerability of the most vulnerable in our society.

Victims of DA with no recourse to public funds continue to struggle to access services, and we still lack a clear ‘firewall’ between police and immigration enforcement, creating often insurmountable barriers for victims to disclose. As Commissioners, we continue to press government to amend the Domestic Abuse Bill to ensure all victims and survivors – including migrant victims – have full access to protection and support under the law.

We are also particularly concerned about disabled victims of DA, who may well still be shielding at home, and who have limited access to support or avenues for disclosure. While we welcome the flexibility that Government have now provided for funding beyond 31st October, the ‘long tail’ of Covid will be felt for some time to come. This is especially so for disabled victims, who will be living in ‘lockdown’ long after restrictions for the rest of the population ease.

What would you say to victims of DV who have no confidence (or question whether) they will get justice?

The drop in prosecutions must inevitably impact upon public confidence. It is a real concern, but we are doing all we can to work with criminal justice agencies and the government to address the drops in criminal justice outcomes.

We need a justice system which functions effectively for all victims of crime. I would like to see the following from Government and Statutory bodies:

■ Frequent and better use of conditional pre charge bail and other protective measures and for breaches to be acted upon appropriately. I have called for breaches of a non-contact condition in pre-charge bail to be a criminal offence and for pre-charge bail to be applied in all suspected domestic abuse cases.

■ Victims being treated appropriately and sensitively by police and referred to support;

■ Police maintaining regular contact with victims throughout their investigations;

■ Effective processes for identifying vulnerable and intimidated victims so that they have access to special measures;

■ I have called for a review of funding for victim services as part of the government’s current spending review;

■ Independent Domestic Violence Advisor (‘IDVA’) support including at court for every complainant who wishes it;

■ Proper and effective safeguarding for victims of these offences so that they and their families are safe and protected;

■ More refuge provision;

■ A ‘firewall’ between police and immigration enforcement giving migrant victims the confidence to come forward and report;

■ Transparent and high-quality decision making on charging and prosecuting by specialist CPS.

We note that during the Covid lockdown there were some police forces who were able to do some more innovative work on domestic abuse and prioritised this within their forces. We have worked with police on projects which include new ways to report, better signposting to services and new ways of assessing risk. ■

1. See 2019/20 Annual Report, page 11 for statistics.