Since the implementation of the Crime and Security Act 2010 the Police have been able to issue Domestic Violence Protection Notices (DVPN) and subsequently apply to the Magistrates’ Court for Domestic Violence Protection Orders (DVPO).
DVPNs and DVPOs were designed to combat domestic abuse allegations where there is insufficient evidence to provide a realistic prospect of conviction, usually where a formal complaint statement has not be made. They allow conditions, similar to bail conditions or a restraining order, to be imposed for a maximum of 28 days in the hope that a reluctant complainant proceeds to make a formal statement of complaint and supports a prosecution, after being afforded some protection by the Police and Courts.
Whilst DVPNs and DVPOs are dealt with before the criminal courts they are actually civil proceedings. However, breach of a DVPO is a criminal offence and can result in a prison sentence of up to 2 months.
A DVPN may be issued to you, providing you are over 18, if the Police have reasonable grounds for believing that:
An associated person includes those persons who:
Before issuing a DVPN, the Police must consider, specifically; –
Whilst the Police must take into account the opinions and views of the associated person, as well as any representations you make, these are not overriding factors and, ultimately, it is a decision for the Police.
What this means in practice is that should your partner make an allegation against you but then be unwilling to provide a formal statement to the Police or support a prosecution, you could be served with a DVPN which would usually prohibit you from contacting your partner, attending their address or attempting to evict or exclude them from the address. It is irrelevant whether the address belongs to you or is in your name.
If there has been a history of Police involvement between you and your partner, or other associated person, then there is a higher likelihood that a DVPN will be issued.
If you are served with a DVPN you will also be told, within the Notice, of the date, time and location of the proposed hearing for the Police’s application for a DVPO. This must take place within 48 hours of the DVPN being issued.
Breach of a DVPN
If you breach a DVPN the Police have the power to arrest you and bring you before the Magistrates’ Court within 24 hours, at which point the application for a DVPO will be heard.
If, for whatever reason, the application for a DVPO is not dealt with at the first hearing then the Court have the power to adjourn the case and either release you on bail or remand you in custody. If you have come before the Court because you have breached the DVPN then the chances of you being remanded, should the case be adjourned, are higher.
During any adjournment the DVPN will still be in force.
Application for a DVPO
For the Police to apply for a DVPO they will need to make a formal application before the Magistrates’ Court, within 48 hours of the DVPN.
In order to make a DVPO the Court must be satisfied that the following conditions are met:
As this is a civil application the standard of proof is “on the balance of probabilities” rather than the criminal standard of proof of “beyond reasonable doubt”.
What this means is the Court must believe it is “more likely than not” that violence has been used or threatened, rather than them being “sure”.
In reaching their conclusion the Court can consider hearsay evidence, such as body worn camera footage.
Similar to the issuing of a DVPN whilst the Court must take into account the opinions and views of the associated person these are not overriding factors and, ultimately, it is a decision for the Court. The Courts can, and do, make DVPOs in circumstances where the person for whose protection it is made does not consent to its making.
You are entitled to attend this hearing and make representations to the Court as to why you feel the Order should not be granted.
It is possible to apply for Legal Aid to enable you to be represented at Court however you should be aware that should you oppose the application which is later granted by the Court, as most are, then there Police will request upwards of £600 towards the costs of making the application.
Equally if you do not contest the application then the Police will likely make an application for costs in region of £200.
Should the Court grant the Police’s application then the DVPO can run from no less than 14 day to no more than 28 days. There terms of the Order will likely be similar to the terms of the DVPN, however a copy of the Order will be sent to you and it important for you to carefully read the conditions set out by the Court to avoid any inadvertent breaches.
Once a DVPO is made there is no provision to vary or revoke it. The Order must run until the period granted. Equally there is not power to extend of vary the Order by the Police after it is made.
Breach of a DVPO
If you are suspected of breaching a DVPO then you can be arrested and brought before the Court in custody within 24 hours (excluding Sundays and Bank Holidays).
Legal Aid is available for breach matters to enable you to be represented at the Court hearing.
If you accept breaching the Order the Court will proceed to sentence you. If however you dispute the allegation then the Court will hear submissions from the Police advocate and you, or your solicitor. Again hearsay is acceptable evidence and the Court will consider their verdict based on the submissions they have heard and determining on the balance of probabilities as to whether you have breached the Order.
If you plead guilty or are found to be in breach of a DVPO the Court have three sentencing options at their disposal:
It is of note that the Court have no power to impose a suspended sentence for this offence and the Early Guilty Plea scheme does not apply, however representations can be made to the Court to request that they consider giving you credit if you have accepted breaching the Order at the earliest opportunity.
If you are facing an allegation of breaching a DVPO we strongly recommend you seek legal advice to secure representation at court.
If you are issued with a DVPN or an application for a DVPO is made against you or would like more information in relation to this article please contact Patrick Geddes on 01978 291000 or [email protected]