Nov 27, 2017

Domestic Violence Protection Notices

Domestic Violence Protection Notices and Orders

 

Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.

 

Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, the male is the recipient of a DVPN.

 

The effect of the DVPN is to force the recipient's removal from the property for 48 hours; this will then be followed by an application to the magistrates' court for a DVPO which can result in removal from the premises for a further 28 days.

 

The rationale is to give the supposed victim of domestic violence a 'breathing space' in which to seek assistance.

 

Can You Challenge a Notice?

 

Because of the relatively informal way in which DVPNs are issued, there is no realistic way to challenge them before they take effect, so later successful challenges will result in a mostly pyrrhic victory only.

 

However, you can challenge the application for a DVPO, and we can assist you in that process.

 

The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).

 

The facts, in this case, are typical of many of the cases that we see before the courts, and one particular, albeit by no means an uncommon feature was that the supposed beneficiary of the order, Mr Kerr's partner of 8 years, did not actively support the making of the order.

 

The High Court upheld the legislative scheme in its entirety, observing that:

 

'...within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.'

 

Is Kerr wrongly decided?

 

There is no case law cited in the judgment, and it is open to argument therefore whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327 where, when considering whether to make a restraining order the Court of Appeal observed:

 

'‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with. Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.  It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

 

How Can We Assist?

 

When new judgments come along, they are often presented as offering the complete answer to a legal problem, but in our experience, they seldom do. Recourse has to be had to earlier decisions, particularly ones not considered in any new case. We do not accept anything at face value, preferring to challenge perceived norms and advance alternative arguments.

 

If you are facing the prospect of a DVPO, then do not hesitate to contact the team at enquiries@ebrattridge.com.