Protecting Victims of Domestic Violence—Have We Got the Balance Right?
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| DOI | http://doi.org/10.1177/0022018315574820 |
| Subject Matter | Articles |
Article
Protecting Victims of
Domestic Violence—Have
We Got the Balance Right?
Claire Bessant
Northumbria University, Newcastle, UK
Abstract
That states should act to prevent domestic violence and protect victims is clearly acknowl-
edged in international law. Yet international law confirms also that victims, perpetrators and
their families have rights to privacy, to a family life and to a home. The extent to which rights to
respect for private and family life should be interfered with in order to protect victims remains
in dispute. With the aim of improving the protection afforded to domestic violence victims in
England and Wales, in 2011–2012 the police and courts piloted the use of two new short-term
protective measures; domestic violence protection notices and orders. Between 2012 and
2013 the police also piloted the domestic violence disclosure scheme, which saw prospective
victims provided with information about their partner’s previous violent behaviour. The dis-
closure scheme and the domestic violence protection orders and notices were rolled out
nationally in March 2014. In this article, consideration is given to the impact these two
initiatives will have on the privacy of victims and perpetrators, an issue not considered in
government evaluations of the pilots. This article analyses whether the roll-out of these new
initiatives is justified, given their potential for interference in private and family life.
Keywords
Domestic violence, privacy, private life, Article 8
Introduction
‘Until the nineteenth century, the ideal of family privacy, an ideal central to the philosophy under-
lying the liberal state, largely shielded the family from state intervention.’
1
Whilst in England and
Wales a marked change in approach has become evident, with significantly increased protection
Corresponding author:
Claire Bessant, Northumbria Law School, Northumbria University, City Campus East, Newcastle Upon Tyne NE1 8ST, UK.
E-mail: claire.bessant@northumbria.ac.uk
1. A. Diduck and F. Kaganas, Family Law, Gender and the State—Texts, Cases and Materials, 3rd edn (Hart Publishing: Oxford,
2012) 547.
The Journal of Criminal Law
2015, Vol. 79(2) 102–121
ªThe Author(s) 2015
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DOI: 10.1177/0022018315574820
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now offered to victims of domestic violence, the extent to which the state should intervene in pri-
vate family life to protect such victims continues to provoke debate.
Domestic legislative developments affording improved protection to victims can be ascribed to var-
ious factors: an improved domestic understanding of domestic violence and its effects, campaigning by
women’s movements and organisations supporting women,
2
but also by numerous international conven-
tions which condemn violence against women.
3
The difficulty for legislators, of course, is that whilst these international conventions argue persua-
sively that states should act to protect domestic violence victims, certain conventions also afford rights
to perpetrators of domestic violence, and to the families of victims and perpetrators.
4
These rights, includ-
ing rights to respect for private and family life, often conflict with rights to protection afforded to victims.
It is against this backdrop that this article examines two sets of measures which were rolled out
across England and Wales in March 2014. First, we will consider domestic violence protection
notices (‘DVPNs’) and Domestic Violence Protection Orders (‘DVPOs’).
5
The second initiative
we consider is the Domestic Violence Disclosure Scheme (the ‘Disclosure Scheme’).
Drawing upon the international literature and jurisprudence which debate the role that the state should
play in protecting domestic violence victims, outlining how protection afforded to domestic violence
victims in England and Wales might be improved, this article questions whether the introduction of
DVPNs, DVPOs and the Disclosure Scheme is justified.
International Obligations
Public authorities in England and Wales must act in accordance with the European Convention for
the Protection of Human Rights and Fundamental Freedoms (the ‘European Convention’).
6
Accord-
ingly courts, the police and the Crown Prosecution Service must take positive steps to protect life
7
and prevent torture and inhuman and degrading treatment.
8
Victims of domestic violence may
enforce such rights and seek a remedy for their breach at the domestic level
9
and through proceed-
ings before the European Court of Human Rights (ECtHR) when all domestic remedies have been
exhausted. The provisions of the European Convention may thus be seen as fundamental in the
fight against domestic violence.
10
The European Convention is not, however, the only convention which requires the UK government
to act to prevent violence, protect victims and punish perpetrators. The 1948 UN Universal Declara-
tion on Human Rights
11
(the ‘Universal Declaration’), for example, is arguably of crucial importance
in signalling that no one should be subjected to torture, cruel, inhuman or degrading treatment or pun-
ishment,
12
that slavery and servitude are not to be tolerated,
13
and that no individual should be
2. A. Matczak, E. Hatzidimitriadou and J. Lindsay, Review of Domestic Violence Policies in England and Wales (Kingston
University and St Georges, University of London: London, 2011).
3. Includ ing UN, Declaration on the Elimination of Violence against Women of 20 December 1993 (GA/RES/48/104);
2011 Council of Europe Convention on preventing and combating violence against women and domestic violence.
4. For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms.
5. DVPO appear to be based upon similar legislative provisions operating elsewhere in Europe: the Austrian Protection against
Domestic Violence Act 1996 and the German Protection from Violence Act 2002 (ACPO, Tackling Perpetrators of violence
against women and girls: ACPO Review for the Home Secretary (ACPO: London, 2009) 50).
6. Section 6 Human Rights Act 1998.
7. Art. 2 of the European Convention.
8. Art. 3 of the European Convention.
9. Section 7 Human Rights Act 1998.
10. S. Choudhry and J. Herring, Domestic Violence and the Human Rights Act 1998: a new means of legal intervention? [2006]
Public Law 752.
11. GA/RES 217A (III), U.N. Doc A/810.
12. Art. 5 of the European Convention.
13. Art. 4 of the European Convention.
Bessant 103
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