His Honour Glenn Brass, formerly a Circuit Judge on the South Eastern Circuit, was at the Bar for 23 years, specialising in Children Law. He was then appointed to sit as a District Judge at the Principle Registry of the Family Division. In 2005 he was promoted to Chief Justice but still specialised in Family Law. For 3 months of each year he also sat in the Crown Court. He retired in 2015 but continued to sit part time until 2019.
“I was against the reform at the time”
I recall the debate around the criminalising of non-molestation injunction order breaches, introduced by the Domestic Violence (Crime and Victims) Act (DVCVA) 2004, implemented 2007. Harriet Harman MP promoted this change. She thought it necessary to attach really condign punishment to breaches (a maximum of 5 years) in the hope of deterring perpetrators and protecting victims, who were mostly women. I was against the reform at the time, and experience showed that it was – despite its laudable aims – a retrograde step. Many of my colleagues felt the same.
The principle objections to the change were:-
- Most defendants elected trial by jury, which often led to considerable delays, compared with the early committal hearing offered by the Family Justice system.
- The victim was invariably compelled to give evidence for the prosecution. Although ‘special measures’ including screens, video links and intermediaries are available, the victim still has to endure the ordeal of giving evidence at a public hearing. The Family Court is usually convened in chambers, a private hearing.
- The tribunal of fact in family cases is an experienced family judge. In criminal cases an inexperienced jury.
- The acquittal rate in this kind of case is high as the only witnesses are usually the complainant and the defendant. There is often no corroborative evidence.
- The offence is usually committed in the context of a chronic family dispute – over the care of, and contact with, the children of the parties. It is artificial and unhelpful to hive off and compartmentalise the breach of the injunction. The family court can deal with the committal in context, and address the surrounding issues. It will often have the help of an expert – a CAFCASS officer or Children’s Guardian. The criminal court is concerned only with the factual issue of breach and sentencing.
- Many (although not all) breaches involve discrete criminal offences – assault – and can be prosecuted anyway.
It is hardly surprising that so few breaches of injunction orders go to trial.
Some further thoughts
Although the Family court can only impose up to two years’ imprisonment for breach, in practice sentences in the Crown Court rarely exceed that save for serious violence or sexual assault, which would be charged as delayed offences in any event.
The power of arrest which family court judges attached to their non-molestation orders, before they were prevented from doing so by the DVCVA, involved the police in the physical arrest and production at court of the respondent. Beyond that, their involvement was minimal, unless they had personally witnessed the breach. Criminalising breach proceedings led to a huge escalation in police time involved. Each arrest then required a charging decision by the CPS, adding to the delay. The old system had an elegant simplicity.’
The committal system sent perpetrators a tough message
States a retired district judge now sitting as a deputy.
In my view, making breach a criminal offence was a mistake as, before that :-
- The police had to immediately arrest on breach and bring the perpetrator before a judge within 24 hours (or the next working day) which usually involved a night in the cells.
- There was no question of immediate bail. If the committal hearing had to be adjourned for a few days, perhaps to allow the perpetrator to obtain legal advice, there could be a remand in custody if appropriate.
- There was no question of a caution without a court appearance.
- Judges were generally tougher than magistrates and could imprison or (very rarely) fine.
- There were no community penalties, seen by many perpetrators as a soft option, and which many serve while living back with the victim.
- Despite all they say, the police and CPS are often reluctant to prosecute if they have only the victim’s evidence, so a perpetrator never sees the inside of a cell or a courtroom.
- In county/family court committal proceedings the victim was usually represented by their own advocate rather than a busy CPS lawyer.
The committal system sent perpetrators a tough message.