Vanessa Bettinson

Evidencing domestic violence, including behaviour that falls under the new offence of 'controlling or coercive behaviour'

In 2015 an offence of ‘controlling or coercive behaviour’ was introduced under the Serious Crime Act, criminalising for the first time the non-physical abuse which so often occurs in the domestic context. This new offence implicitly recognises the psychological and emotional harm which can result from an ongoing pattern of behaviour, and the need to consider the controlling or coercive nature of this behaviour in the context of the power dynamics of the relationship in question. Unique evidential difficulties are raised by this offence, in part because of the ways in which gendered expectations can disguise the controlling and coercive nature of certain behaviours. At the same time, to increase the number of prosecutions for domestic violence offences, including under the new offence, acknowledgement of the ongoing trauma often experienced by victims, and the ways in which this may hinder their ability to safely and effectively participate in the criminal justice process, is required. We will outline recommendations to enable this participation, whilst also asserting the need for creative prosecution methods which allow these type of cases to be prosecuted without being solely reliant upon the victim’s oral testimony in court.

Challenging the ongoing injustice of imprisonment for public protection: James, Wells and Lee v the United Kingdom

The Government has recently abolished Imprisonment for Public Protection, a highly controversial form of indeterminate sentence. Yet, at the time of writing, nearly 6,000 inmates are still serving such sentences, all of whom will have to convince a Parole Board that detention is no longer necessary for the protection of the public. This paper evaluates recent European Court of Human Rights jurisprudence which considered the legality of post‐tariff detention in the absence of suitable rehabilitative provisions. The Court held that there would be a violation of Article 5(1) if prisoners were held without access to such provisions. Consideration is given to the implications of this ruling for those serving such sentences and, more broadly, to the impact it may have on risk‐based sentencing policies.

Surviving Times of Austerity: Preserving the Specialist Domestic Violence Court Provision

Specialist Domestic Violence Courts (SDVCs) in England and Wales were set up for creating a more victim-centred approach within the criminal justice system and increasing the number of prosecutions for domestic violence-related offending. However, since 2010, the number of court houses has declined, and this chapter highlights the rationale for ensuring that SDVC provision survives further budgetary cuts. Comparisons are made with the development and progress of specialist Domestic Abuse Courts in Scotland. Vanessa Bettinson explores the significance and impact of good working relationships between the police, prosecution authorities and the independent victim’s advocate within the court arena. With the rise of police diversions, an argument is also made for increasing the role of SDVCs as overseers of police cautions and out-of-court disposals.

N v Secretary of State for the Home Department [2005] 2 WLR 1124: is inadequate medical care insufficient to resist removal? The return of foreign nationals with HIV/AIDS and Article 3 ECHR

The successful appeals of Sally Clark and Angela Cannings, as well as the General Medical Council’s investigation into the role of Professor Roy Meadows in the ‘shaken baby syndrome’ cases, raise questions about the viability of derivative compensation claims by the wrongly accused. The plight of parents who have suffered psychological injury due to decision-making regarding their children has thereby been heightened in public awareness. However, the common law has constrained the ability to take legal action in such circumstances due to the absence of a duty of care in negligence. The House of Lords has recently considered JD v East Berkshire Community Health Trust [2005] UKHL 23 (‘East Berkshire’), where the Court of Appeal, while conceding that a duty of care in negligence was owed to a child by a local authority in investigations into possible abuse, held that policy reasons continued to justify the denial of a comparable duty to parents. The European Court of Human Rights, however, has produced a line of decisions which recognises the applicability of the art. 8 European Convention on Human Rights right to respect for private and family life, particularly in relation to procedural aspects. This case note examines the rationale behind maintaining a narrowly drawn conception of what is ‘fair just and reasonable’ in the common law regarding liability to parents in such cases. The ‘trump’ of somewhat imprecise policy concerns continues to be asserted in order to deny the existence of a duty, but these concerns are gradually losing their potency. East Berkshire raises questions about the function of duty of care in negligence and the relationship between the common law and human rights approaches. Journal of Social Welfare and Family Law Vol. 28, No. 1, March 2006, pp. 59–80

Restraining orders following an acquittal in domestic violence cases: securing greater victim safety?

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 Services overall strategy to improve its performance in domestic violence-related cases.

Has the Court of Appeal extended the per incuriam exception : R v Cooper [2011] EWCA cRIM 1872.

The appellant was made subject to a court order under s. 28 of the Criminal Justice and Court Services Act 2000 following his conviction for three counts of rape for which he initially received 18 years’ imprisonment. He appealed against his sentence on the basis that it was manifestly excessive. The second issue for the Court of Appeal to consider concerned the s. 28 order which disqualified the appellant from working with children. The regime for disqualification orders was created under Part II of the 2000 Act with the consequences of such an order contained in s. 35 of the Act. In the appellant’s case, he received a standard form notice conveying the content of the s. 28 order which he signed in acknowledgement of receipt. However, the judge did not inform the appellant that he would be barred from working with children as he is required to do under the Safeguarding Vulnerable Groups Act 2006. The 2006 Act was introduced following the Bichard Inquiry (The Bichard Inquiry Report, HC653 (TSO: London, 22 June 2004)) undertaken as a result of the Soham murders, which highlighted a need for reform of the schemes dealing with the vetting and barring of individuals working with vulnerable groups. The 2006 Act was intended to create a new statutory regime for barring individuals convicted of specified crimes from working with children and vulnerable adults as a replacement for the disqualification order regime under the 2000 Act. The 2006 Act has been implemented in a piecemeal fashion following further statutory amendment and, as a result, it is difficult to navigate the provisions of the Act, leading to a lack of legal certainty as to the correct Crown Court procedure in respect of disqualified or barred persons upon conviction of a specified offence. The Safeguarding Vulnerable Groups Act 2006 (Commencement Order No. 6, Transitional Provisions and Savings) Order 2009 (SI 2009 No. 2610) entered into force on 12 October 2009. Article 3(2) provides that: ‘The provisions of CJCSA referred to in paragraph (1) shall cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act’. The provisions in s. 3(2) of the 2000 Act relate to the duty of the court to make a s. 28 order. In the present appeal the Court of Appeal was asked to determine what the duty of the court was in relation to making a s. 28 order following the 2009 Commencement Order. Either it should be read as

Extended sentences for domestic volence offences : R v Fazli [2009] EWCA Crim 939.

In April 2008, the appellant, Gemma Evans, and her mother, Andrea Townsend, were convicted of the gross negligence manslaughter of the appellant’s 16-year-old half sister, Carly Townsend, who died following a heroin overdose at Andrea Townsend’s home during the night of 2 May 2007 and the following morning. All three had a history of heroin addiction; the appellant had herself been previously saved by paramedics following an overdose, and Carly was newly released on licence to her mother’s care following a six-month detention and training order. Although disputed, the evidence submitted was that the appellant had acted as an intermediary in buying the heroin from a local dealer, which she then gave to Carly. That same evening, in her mother’s house, and following self-injection of the drugs, Carly developed and complained of symptoms consistent with an overdose. She lost colour, had a high temperature, her lips turned blue and she was unable to respond to her family. However, fearing that both they and Carly would be in trouble if they sought help, the appellant and her mother simply put Carly to bed in the hope that she would sleep it off. Indeed, after staying with her for a couple of hours, it appeared that although she was in a ‘gouch’ (a state of unconsciousness familiar to habitual drug users), Carly’s colour had returned, she looked much better and, as she was by then snoring, appeared to be sleep. Andrea Townsend and the appellant slept in the same room as Carly that night, but she was found to be dead the next morning. At trial, the prosecution claimed that Gemma Evans owed Carly a duty of care either on the basis of the sibling relationship or, alternatively, that she had assumed responsibility for Carly during the interval between taking the drugs and Carly’s death. As to the first claim, the trial judge found that this particular blood relationship did not provide a basis for the existence of a duty of care, and as to the second, that nothing Gemma Evans had done amounted to an assumption of responsibility for Carly which would give rise to a duty of care (citing R v Stone and Dobinson [1977] 1 QB 354 and R v Ruffell [2003] EWCA Crim 122). However, the trial judge went on to direct the jury that if they were sure that the defendant had acted as an intermediary in the provision of the drugs to her sister, then that was ‘a matter which in law is capable of giving rise to a duty of care’. He cited R v Khan and Khan [1998] Crim LR 830 and R v Sinclair, Johnson and Smith [1998] EWCA Crim 2950 as authorities for this proposition.