Domestic Abuse Bill 2020:  Lie Detector Tests For Offenders?

The government has introduced the Enhanced Domestic Abuse Bill 2020. This important legislation will finally provide further support and protection for those who have to suffer this horrendous treatment.

In the year ending March 2019, an estimated 2.4 million adults aged 16 to 74 years experienced domestic abuse. This includes 786,00 men and 1.6 million women. The Home Office research found that the cost of domestic abuse on society is £66 billion per year!

The Minister for Safeguarding (Victoria Atkins) said: “…this bill will provide support to the victims and survivors of this horrendous crime so that they can go some way to feeling safe again…”.

What Will Change With The Domestic Abuse Bill 2020?

The government’s aim is to raise awareness and understanding in respect of the devastating impact caused by domestic violence. The changes aim to improve the effectiveness of the justice system in providing better protection and support for victims.

There are many changes and this blog cannot focus on all of them in-depth. The aim is to provide general oversight and explain some of the main changes further.

New Statutory Definition of Domestic Abuse

There will finally be a statutory definition of domestic abuse.

This is fantastic news as it provides clarity. It is clearly not an easy task to define domestic abuse. I mean over the years society has slowly become more enlightened to the differing forms of domestic abuse making victim’s lives unbearable.

The new definition will cover physical or sexual abuse, controlling or coercive behaviour, violent or threatening behaviour, economic abuse, psychological, emotional or other abuse.

The proposed new definition is:

“…s.1 

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—

(a)  A and B are each aged 16 or over and are personally connected to each other, and

(b)  the behaviour is abusive.

(3)  Behaviour is “abusive” if it consists of any of the following—

(a)  physical or sexual abuse;

(b)  violent or threatening behaviour;

(c)  controlling or coercive behaviour;

(d)  economic abuse (see subsection (4));

(e)  psychological, emotional or other abuse;…”

It does not matter whether the behaviour consists of a single incident or a course of conduct.

The term ‘personally connected’ refers to individuals currently or previously married or in a civil partnership. Those who have agreed to marry or have entered into a civil partnership  (even if the agreement has been terminated). Also, those that have been in an intimate personal relationship with each other or if they are related.

The economic abuse means any behaviour that has a substantial adverse effect on the victim’s ability to obtain goods, services and acquire, use or maintain money or other property. This can apply to the victim even if it is directed to another (i.e. the children).

Mandatory Polygraph Tests in the Domestic Abuse Bill 2020

Hmm, you read that correctly.

The lie detector is not just for Jeremy Kyle. Or should I say was not.

Firstly, I think there will be many surprised to know that polygraph testing is already used.

Since January 2013, they have been used in regard to sexual offenders.  This is normally used when sex offenders are released on license.

The aim is to monitor compliance with licence conditions and the information from this testing is used by offender managers to refine and improve risk management.

Which Domestic Violence Offenders Will Be Polygraph Tested?

There will be a pilot for a three year period.

In two National Probation Service areas, 300 individuals will be tested (the test group) and 300 will be a comparison (the untested group).

The results will formally be evaluated by an independent academic body.

If this is successful, the government will roll out a mandatory polygraph examination for all high-risk domestic abuse offenders.

The polygraph testing will apply to domestic abuse offenders that fall into the following:

  • 18 years +
  • Assessed as very high or high risk of harm (using a nationally accredited risk assessment tool)
  • If the offender has sentenced to 12 months + custody and released on licence
  • If the offender is convicted of either of murder, specified violent offence, breach of a restraining order (related to domestic abuse), controlling or coercive behaviour (in an intimate or family relationship) or a breach of a domestic abuse protection order.

Those who meet these criteria will be required to take a polygraph test 3 months post-release and every 6 months after that. If the test is failed, it could lead to more regular testing!

If the offender fails a polygraph test, they will not be recalled to prison.

However, if they disclose information that shows they have breached their licence conditions o if their risk cannot be managed in the community safely – they can go back to prison.

Alternatively, they could get a formal warning or their licence conditions could be made more onerous.

The information regarding the polygraph will be shared with the Police and they can undertake further investigations. Oh, if attempts are made to ‘trick’ the polygraph or if the offender refuses to take it, the offender could be recalled to prison.

Prohibition – Cross-Examination Of The Victim By The Offender

Thankfully!

This is a long-awaited change!

This will mean that an alleged offender cannot cross-examine and grill the victim.

It will also mean that the Family Court has the power to prohibit cross-examination in person in certain circumstances. The Family Court will be able to appoint a publically-funded advocate to undertake the cross-examination.

So, this means that if an alleged offender has a caution, been convicted or charged with certain offences against the witness – there is an automatic ban on cross-examination. This will also apply to an alleged offender against whom there is an on-notice protective injunction.

Those victims who have not been able to progress criminal justice against the offender need not worry, The automatic ban to cross-examine will also apply if the victim can provide other evidence of domestic abuse (i.e. to the level required to access civil legal aid).

Remember, if all else fails, there is also the ability for the Family Court to be able to prohibit cross-examination where the party/witness would be caused significant distress or the quality of evidence is diminished,

These provisions will not only benefit domestic abuse victims and will also protect the wider range of vulnerable witnesses in Family Court proceedings.

Some Other Changes Made by the Domestic Abuse Bill 2020?

  • The position of Domestic Abuse Commissioner has been created to help promote support for victims, raise awareness and monitor agencies. This position will be fulfilled by Nicole Jacobs.
  • Providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order.
  • There will be a statutory presumption that victims of abuse are eligible for special measures in criminal courts (i.e. giving evidence by video-link).
  • Duty on Local Authorities to provide support to victims and their children in safe accommodation.
  • Giving the guidance supporting Clare’s Law (Domestic Violence Disclosure Scheme) statutory footing.

 

“…There must be changes to further help, support and protect victims from the horrors of domestic abuse. I appreciate the concerns about polygraph testing and perhaps this ‘headline-grabbing’ aspect is bringing negative attention to the overriding positives. There are other concerns, such as the lack of protection for children and migrants. However, the positive aspect is that we are making fundamental changes and perhaps these changes can then evolve to provide protection to all – regardless of their immigration status…”

Azhar Hussain  (Solicitor-Advocate) – Azhar Hussain Family Law Blog

Other Useful Resources

Do you need an injunction (Non-Molestation Order) to protect you? This guide will explain how to apply: http://www.azharhussain.co.uk/non-molestation-order/

Alternatively, if you would like some assistance to understand divorce facts you can view these helpful divorce help videos (vlogs):

  1. Unreasonable Behaviour?
  2. Adultery?
  3. Desertion?
  4. Separation of 2 years (with consent)?
  5. Separation of 5 years (with no consent)?