Restraining Orders following an Acquittal in Domestic Violence Cases: Securing Greater Victim Safety?
| Author | Vanessa Bettinson |
| DOI | 10.1350/jcla.2012.76.6.907 |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| Subject Matter | Article |
Restraining Orders Following
an Acquittal in Domestic
Violence Cases: Securing Greater
Victim Safety?
Vanessa Bettinson*
Abstract This article explores the use of post-acquittal restraining orders
in domestic violence cases. It considers whether these orders, civil in
nature, should be imposed by a criminal court upon a defendant who has
been acquitted. The procedural and human rights concerns of both the
defendant of domestic violence cases and the victim are considered and
the conclusion is drawn that these restraining orders can accommodate
the balance between the interests of defendant and victim. It is argued that
further training of prosecutors, judges and magistrates in the use of post-
acquittal restraining orders would further improve the Crown Prosecution
Service’s overall strategy to improve its performance in domestic violence-
related cases.
Keywords Domestic violence; Restraining orders; Specialist courts;
Victims
Home Office figures estimate that 29 per cent of women and 16 per cent
of men in England and Wales have suffered some form of domestic
violence.1The impact of such violence extends beyond that of the
individual victim; pressures are placed on welfare services such as
health, children services and the criminal justice system along with
economic losses through the inability of victims to work when they have
physical and mental health injuries.2Particularly alarming is the extent
to which domestic violence is directed at women,3with the European
Court of Human Rights in Strasbourg construing domestic violence as a
form of gender-based violence.4Tadros argues that domestic violence is
* Senior Lecturer in Law, De Montfort University, Leicester; e-mail: VBettinson@
dmu.ac.uk.
1 Home Office, Homicides, Firearm Offences and Intimate Violence 2009/2010, Home Office
Statistical Bulletin 01/11 (Home Office: London, 2010) 68; E. A. Stanko, D. Crisp,
C. Hale, and H. Lucraft, Counting the Costs: Estimating the Impact of Domestic Violence in
the London Borough of Hackney (Crime Concern: Swindon, 1998) noted that domestic
violence affects one in four women and one in six men in their lifetime.
2 See U. Smartt and H. Kury, ‘Domestic Violence: Comparative Analysis of German
and UK Research Findings’ (2007) 88 Social Science Quarterly 1264 for a précis of the
estimated cost and affect to society of domestic violence.
3 R. P. Dobash and R. E. Dobash, ‘Women’s Violence to Men in Intimate
Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324;
S. Walby and J. Allen, Domestic Violence, Sexual Assault and Stalking: Findings from the
British Crime Survey, Home Office Research Study 276 (Home Office: London, 2004).
4Opuz vTurkey (2010) 50 EHRR 28; A point recognised within the Convention on
the Elimination of All Forms of Discrimination against Women General
Recommendation No. 19, A/47/38, and see S. Edwards, ‘The Duplicity of
Protection—Prosecuting Frightened Victims: An Act of Gender-Based Violence’
(2012) 76 JCL 29.
512 The Journal of Criminal Law (2012) 76 JCL 512–527
doi:10.1350/jcla.2012.76.6.907
distinct from other forms of violence as it is systematic in nature and
occurs between individuals in a close relationship. It is these features of
domestic violence that hinders the legal system’s ability to protect vic-
tims from further violent behaviour.5There are two legal routes a victim
of domestic violence can take to seek protection from the ongoing
violence suffered: the civil legal system or the criminal justice system.
The victim’s position within these two systems differs significantly. In
the civil courts, victims, as applicants of a non-molestation order,6
usually have access to their own lawyer and legal advice. Conversely, in
the criminal justice courts, victims provide evidence to be presented by
the prosecution who work on behalf of the state and not the victim.
Each system, therefore, carries potential obstacles of its own in
achieving greater victim safety. A victim of domestic violence may
perceive that using the civil court route to seek protection is costly.7
Insufficient specialisation of domestic violence matters in the civil courts
may affect both the quality of legal advice given and judicial decision
made.8Conversely the criminal justice system has its own difficulties
inhibiting victim protection. Beyond an initial police response the crim-
inal courts will only offer protection from further domestic violence
offending in limited circumstances. Bail restrictions can be placed on an
individual once charged and may last for the duration of the court
process.9Once convicted the sentencing court should apply the Sentenc-
ing Guidelines,10 offering some protection for the victim.11 However,
victim attrition rates remain high in domestic violence cases and without
the evidence of victims the CPS is often unwilling to prosecute.12 In
order for the legal system as a whole to play its part in providing greater
victim safety the power of criminal courts to make civil restraining
5 V. Tadros, ‘The Distinctiveness of Domestic Abuse: A Freedom-Based Account’
(2004–05) 65 Louisiana Law Review 989.
6 Other orders that are commonly sought in the civil legal system by domestic
violence victims are occupation orders under Part IV of the Family Law Act 1996
and exclusion orders under s. 38A of the Children Act 1989.
7 Although the Legal Services Commission now allows eligibility limits to be waived
in respect of legal representation for victims of domestic violence (Community
Legal Service (Financial) Regulations 2000 (SI 2000 No. 516), reg.5E) and provides
decision-making guidance in Legal Services Commission Manual, vol. 3, part C,
available at: http://www.legalservices.gov.uk/docs/cls_main/Decision_making_guidance_-_
domestic_abuse.pdf, accessed 2 November 2012.
8 M. Burton, ‘Civil Law Remedies for Domestic Violence: Why Are Applications for
Non-Molestation Orders Declining?’ (2009) 31 Journal of Social Welfare & Family Law
109.
9 Bail Act 1976.
10 Sentencing Guidelines Council, Overarching Principles: Domestic Violence (Sentencing
Guidelines Council: London, 2006).
11 V. Bettinson and G. Dingwall, ‘Applying Generic Sentencing Aims to Domestic
Violence Cases in England and Wales’ (2012) 40 International Journal of Law, Crime
and Justice 242.
12 A. L. Robinson and D. Cook, ‘Understanding Victim Retraction in Cases of Domestic
Violence: Specialist Courts, Government Policy, and Victim-Centred Justice’ (2006)
9 Contemporary Justice Review 189; Crown Prosecution Service, Violence Against
Women and Girls Crime Report (2010–11), available at http://www.cps.gov.uk/
publications/equality/vaw/index.html, accessed 2 November 2012.
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