High Court gives important guidance on police applications for DVPOs and the need to protect victims of domestic abuse, in the immediate aftermath of an incident, even when the victim states they do not want it.
Olivia Checa-Dover acted for the Chief Constable in this appeal by way of case stated, brought by the Chief Constable of Cleveland Police.
Introduction
On 17 May 2024, the Honourable Mr Justice Fordham handed down judgment in the case of the Chief Constable of Cleveland Police v Jemmett [2024] EWHC 1172 (Admin) [Click here to view the full judgment]. Through an appeal by way of case stated, the police (and the lower court) sought the High Court’s guidance on questions of law engaging matters of wider public interest. The case arose from an unsuccessful application for a Domestic Violence Protection Order (“DVPO”) but provides guidance of analogous assistance with, for example, future applications for Domestic Abuse Protection Orders of short duration.
The Facts
The background facts make familiar reading for those acting in this area of policing. The complainant and respondent had been in a relationship of some length, with a long and serious history of domestic abuse. There had been periods of separation with subsequent reconciliation on each occasion.
Following an incident of domestic violence, the police issued a Domestic Violence Protection Notce (“DVPN”) and sought a DVPO. The complainant did not consent to the application and the evidence suggested she did not want it to be made.
At first instance, the court found, on the balance of probabilities, that the respondent had been violent towards the complainant. However, the application for a DVPO was refused following the District Judge conducting a predictive evaluation of whether the complainant would “take advantage” of the protective measure, concluding that she would not. In arriving at that conclusion, the District Judge relied upon case law regarding criminal restraining orders.
The High Court held, amongst other things, that conducting that sort of predictive evaluation was an error of law, as was relying on authorities relating to restraining orders.
The Questions and Answers
Following a detailed analysis, Fordham J answered the questions as follows (§48):
‘(Q1) Applying the two-stage test required when exercising my judgement on an application for a DVPO, and having been satisfied on the first limb, that, on the balance of probabilities, the person against whom the order is sought, has been violent or threatened violence towards to person to be protected, to what extent should I: (a) consider the views of the person to be protected, and her lack of intention to engage with other agencies, as a factor in deciding that the order is necessary; and (b) consider the express statutory ability under s.28(5) of the Crime and Security Act 2010 to make a DVPO where the complainant does not consent to the same?
(A1) In exercising this statutory function: (a) you must consider any opinion of the Protected Person of which your court has been made aware (s.28(4)(b)(i)); but (b) you must recognise that your power to issue a DVPO arises even where that opinion involves an absence of consent from the Protected Person or their positive disagreement (s.28(5)). As to future engagement with other agencies, you should not base your decision on such a prediction. The key points are at §47 above.
(Q2) Is there a material difference between the nature and purpose of (i) civil DVPOs and (ii) criminal restraining orders? If so, to what extent is the case law relating to retraining orders applicable and/or of assistance when the court is exercising its civil powers by considering whether or not a DVPO is necessary?
(A2) Yes, there is a material difference; and no, this case law is inapplicable and does not assist. I have explained why at §§21, 26-43 above.
(Q3) In all the circumstances, was the decision to refuse the application permissible and/or reasonably open to the court?
(A3) No, it was not legally permissible, because of errors of law – rather than an unreasonable judgment or discretion – which relate to the points which you have raised: see (A1) and (A2).’
On the issue of how the court should approach applications for short-term protective orders, when the person whom the police are seeking to protect “does not want” or “would not take advantage of” the same, the Court provided the following guidance (§47):
‘(1) First, the court must always consider any opinion of the Protected Person, of which the court is made aware (s.28(4)(b)).
(2) Secondly, and importantly, Parliament has empowered the making of a DVPO, even where (s.28(5)) the Protected Person (a) does not express positive agreement or (b) expresses positive disagreement.
(3) Thirdly, DVPOs are designed to provide a safe further short-term period in the immediate aftermath of violent domestic abuse or the latest violent incident of domestic abuse.
(4) Fourthly, one distinct purpose of this safe further short-term period is about promoting and protecting the Protected Person’s autonomous decision-making. The DVPO secures a safe further short-term period in which that can take place. There is the chance of the Protected Person securing longer-term safety. But the purpose is not a function of what any decision may be, or how it may be approached. It is a function of the autonomy, in the protected space. This purpose – and “advantage” – is therefore applicable, even if the court would predict that the Protected Person (a) would not engage with relevant agencies and/or (b) would resume a cohabiting relationship with the Restrained Person.
(5) Fifthly, another and freestanding purpose is simply about securing a safe further short-term period. This, in itself, is protection of the Protected Person from violence or a threat of violence by the Restrained Person. This purpose – and “advantage” – is independent of any decision-making and of any engagement or non-engagement with relevant agencies. It is therefore applicable, even if the court would predict that the Protected Person (a) would not engage with relevant agencies and/or (b) would resume a cohabiting relationship with the Restrained Person.
(6) Sixthly, the court’s decision to make – or not to make – a DVPO should not be based on or informed by a prediction of what the Protected Person would do or decide.
(7) Seventhly, the court’s decision to make – or not to make – a DVPO should not be attributable to or the responsibility of the Protected Person, or communicated as being attributable to them or their responsibility.’
The final point is crucial because ‘the signals which courts give, about the basis of their orders – including protective orders – really matter. This is a ‘big picture’ point. In the express design of the statutory scheme for DVPNs and DVPOs, Parliament has recognised that it would be inappropriate for victims to be “responsible for” the making, or not making, of the order which protects them in the immediate aftermath of a violent incident – or latest violent incident – of domestic abuse’ (§39).