The topic of domestic abuse is a quite antagonistic topic. Police, Campaigners and victims all agree for its immediate stop, but are unable to determine how to do so. A consultation done by the recent government chose to concentrate it efforts on harder convictions, sentences as well as expanding restrictive civil orders. However according to The College of Policing it is said that there is no substantial evidence which proves that the use of criminal sanctions will stop abusers from abusing. With College of Policing lead for crime and criminal justice, David Tucker, stating “Police officers and staff do tremendous work every day in safeguarding victims and bringing offenders to justice but our research indicates the risk assessment tools used by most forces could be more effective at helping to identify the most dangerous situation” Suggesting that it is difficult to pinpoint one method of resolve as the most sufficient in providing victims with the most effective type of justice. Considering this observation, to answer the question in focus different areas of the legal system must be analysed in order to judge effectiveness. Furthermore this dissertation should also be able to critically analyses the objectives and standards already in place within the English legal system and discuss any drawbacks present in the litigation. As well as that, for the question to be answered effectively a comparative aspect needs to be in place to measure the efficiency of the English legal system compared to other approaches which may work more in favour to provide victims with the necessary justice.
Decisions made by the court have been seen to be insufficient in regards to punishing abusers of victims. Many have success in appealing their first conviction in favour for a shorter length. This can be seen in the case of R v Moore (2015), in which the offender successfully reduced a 12 month imprisonment sentence to a 6 month consecutive sentence. As it was contested that the original sentence was “unlawful and had to be quashed” and that the offences had clearly crossed the custody threshold. Therefore the aim of this research is to consider the limitations of the English Legal system and to analyse whether it provides sufficient justice for those victims effected by domestic violence.
Desk Based Research
This would be the primary approach of research as it would be essential in enquiring the relevant legislations and policies in accordance to domestic violence, and would be able to provide both opinionated and factual study . It would allow to explore a larger range of sources such as journal articles, websites and textbooks, which would be required to gain a better understanding on the current legal standing of UK Jurisdiction and evaluate its critical viewpoints. As this area is so vast it would be unlikely for an individual to have enough knowledge and understanding, so secondary sources would give an opportunity to review work by professionals and academics and use it to answer the statement. Furthermore it would be useful to look into the different ways domestic violence is dealt with within the legal system, including the sentencing guidelines and litigation put into place. It would also be used to establish Case Law, with the use of Westlaw and Lexis, and would give a better understanding in the success rates for victims which could be compared with cases of an opposite outcome. However a weakness of using this would be that it would have to be taken into account the various nature of the use of online sources, as many can show possible bias depending on the author and their views or any vested interests. Also when using statistics a critical analysis on it origins has to be considered to value its credibility.
As the English Legal system is being analysed in its sufficiency of providing justice for victims, research done must “employ a wide variety of methods in studying law and legal phenomena” , to allow a understanding of how the current laws are portrayed socially. Furthermore it will help to analyse the societal factors which influence the rate of violence and the “climate it creates which allow it to be acceptable in society”. It will allow for a social- legal perspective to be shown which is needed to show a methodological approach and debate the issues surrounding how the public perceive the controversial laws of Domestic Violence. An example of this would be how Domestic Abuse and Domestic Violence are perceived to be the same thing. This method would also be useful to analyse how due to societal pressures many victims due not report their trauma meaning less abusers get convicted. On the other hand by using this method it would mean that research would be limited only to those of a social prospect and stray from give legal analytics.
Qualitative methods would be required in this research to ascertain a greater understanding on the number of victims who achieved success by gaining justice and what percentage was due to the efforts of the English Legal System, by using Data and surveys. As it has to be take into account that many victims fail to go to authorities and pursue their case through the legal system . According to journal article by Enrique Graciat stating that many victims “fail to pursue to police intervention due to fear of retaliation” as many are anxious about their well being if a conviction occurs and how it would effect family life. This should be considered when looking at analysing the sufficiency of the legal system. A disadvantage of using this method would be that some surveys and data may be unreliable due to the websites they are from and also it may be difficult to obtain recent statistics. Meaning just like desk based research sources must be checked for their validity and reliability.
Key Themes for Consideration
The first issue to consider is that even though many changes have been made to civil law by the Domestic Violence and Victims Act 2004 it has had no significant impact to civil law as it suggests. The act was described as 'the biggest overhaul of the law on domestic violence in the last 30 years' by the home office. However for years continuing criminal law had to be used as a last resort to support victims.
The second issue would be that the applicability of the Domestic Violence and Victims Act 2004 to actual cases of Domestic Violence is difficult to do. As if the case involves physical violence the court tends to use the Offences Against the Persons Act 1861. By doing so key aspects of cases of Domestic Violence are excluded, this includes behaviour of a controlling and coercive nature. In turns this means that they are only able to gain justice for only a part of their ordeal.
Thirdly, it could be considered whether or not financial reasons could be the reason why victims could not achieve justice through the legal system. As access to free legal aid is becoming increasingly difficult it has become harder for victims to properly represent themselves at court and reach a final conviction by going through each stage of the legal system. Meaning, that they may not be a fault with the legal system itself but instead with victims being unable to use it.
A fourth theme would be to analyse the other methods of accessing justice which would does not include the legal system. Charities like Victims’ Aid and Women’s Aid incorporate the Government’s definition of domestic abuse and use their services to “fit with local and national partnership strategies”. This could be analysed to give an alternative view on ways in which victims can get justice, but also to see the areas in which the legal system is lacking.
In order to gain a better understanding on the research topic, I will be analysing secondary sources such as textbooks. One in which seems particularly helpful is Domestic Violence and criminal justice. The source gives a detailed analysis on how the English legal system intervenes to support victims of domestic violence and punishes those who have committed the act. As well as that the textbook also acts as an introduction to social and contemporary issues in the field of domestic violence and criminal justice. This would accommodate in supporting the research question as it gives an in depth analysis on basic knowledge of how the law deals with domestic violence and what criminal implications are present. The source is also reliable since is has been written by two expers in the field. On the other hand the source could also has a negative aspect as it fails to provide any case law to support the theories present, its also is too informative of a source and fails to give a critical analysis
- ‘Love fear and control- does the criminal justice system reduce domestic abuse?’ (Penelope Gibbs, August 2018)< http://www.transformjustice.org.uk/wp-content/uploads/2018/09/TJ_August_WEB_V1.pdf> accessed 31 December 2018
- ‘How victims and survivors of domestic abuse experience the criminal justice system’(Alex Mayes, December 2017) accessed 31 December 2018
- ‘Police support victims of coercive control’ (College of Policing, 31 December 2018) Home Office, 'The Domestic Violence, Crime and Victims Act 2004' (Home Office Circular 9/2005) < http://www.homeoffice.gov.uk/about-us/publications/home-office-circulars/circulars-2005/009-2005/ > accessed 30 September 2009
- Reza Banakar & Max Travers, ‘Theory and Method in Socio-Legal Research’ (2005) International Institute For The Sociology
- World Health Organisation, ’World report on violence and health’ (2005) Geneva: World Health Organisation
- Enrique Graciat, ‘societal views of the policing system’ (2014) 62(4) Harvard Law Review, 616
- IARS International Institute ‘Restorative justice in cases of domestic violence’ (2013) AG(4587) WS1, Country Report United Kingdom
- Nicola Groves, Terry Thomas, Domestic Violence and criminal justice (1st edn OUP 2014)