Northern Ireland’s New Offence of Domestic Abuse (2022)

Abstract

A specific offence of domestic abuse was introduced in Northern Ireland in March 2021 under section 1 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021. This represents a crucial development in Northern Ireland’s response to domestic abuse. The new legislation has the effect of criminalizing coercive and controlling behaviour, therefore bringing Northern Ireland into line with the other jurisdictions within the United Kingdom and Ireland, and also with relevant human rights standards. Being the final jurisdiction within the United Kingdom and Ireland to criminalize such behaviour has enabled Northern Ireland’s approach to be informed by the legislation enacted in the other jurisdictions and, in some respects, has allowed Northern Ireland to ‘cherry pick’ the best aspects of the approaches of these jurisdictions. There are also aspects of Northern Ireland’s domestic abuse offence which differ from the approaches in any of the other jurisdictions in question. However, although the enactment of the domestic abuse offence is certainly a very positive development, this will not constitute a complete panacea to the problem of domestic violence in Northern Ireland. Legislation in itself is insufficient as regards addressing domestic abuse, and further sustained efforts are necessary to tackle this issue.

In March 2021, a specific offence of domestic abuse passed into law in Northern Ireland under section 1 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021. The creation of this offence is particularly timely, given the sharp rise in instances of domestic violence in Northern Ireland during the COVID-19 pandemic.1 The new legislation has the effect of criminalizing coercive and controlling behaviour, thus bringing Northern Ireland into line with the other jurisdictions within the United Kingdom and Ireland, and also with relevant human rights standards. This paper will examine the reasons why the new offence of domestic abuse was needed, and will engage in comparative analysis with the corresponding legislative provisions for England and Wales, Scotland, and the Republic of Ireland. However, although the enactment of the domestic abuse offence is certainly a very positive development, there is still more that needs to be done as regards Northern Ireland’s response to domestic violence, as will be discussed in this paper.

DOMESTIC ABUSE IN NORTHERN IRELAND

According to statistics released by the Police Service of Northern Ireland (PSNI), during the 12 months from 1 January 2020 to 31 December 2020, there were 31,848 domestic abuse incidents in Northern Ireland, one of the highest rates since such records began in 2004/05.2 Since the beginning of the COVID-19 pandemic, incidents of domestic abuse have increased substantially around the world. Indeed, this increase has been so dramatic that UN Women, the UN entity dedicated to gender equality, has deemed violence against women during the COVID-19 pandemic to be the ‘shadow pandemic’.3 Northern Ireland is no exception to this trend, with the PSNI having received by May 2020 at least 3,755 calls relating to domestic abuse since the first lockdown began in March of that year.4

However, the legislative position as regards domestic abuse in Northern Ireland was problematic. Prior to the enactment of the 2021 Act, there was no specific offence of domestic abuse in this jurisdiction. Instead incidents of domestic violence had to be prosecuted under general criminal law statutes such as the Offences Against the Person Act 1861. This was relatively unproblematic as regards incidents of physical violence, as these could be prosecuted under the 1861 Act as, for example, common assault under section 42, aggravated assault under section 43, assault occasioning actual bodily harm under section 47, assault occasioning grievous bodily harm under section 18, or unlawful wounding under section 20. In R v Ireland and R v. Burstow,5 it was held that a recognizable psychiatric illness could constitute ‘bodily harm’ for the purposes of sections 18, 20, and 47 of the Offences Against the Person Act. However, states of mind which are not supported by medical evidence of psychiatric injury are not encompassed by the 1861 legislation. This proved to be problematic in a number of cases involving domestic abuse.6

For example, in R v. D,7 the husband of a victim of domestic abuse who had committed suicide was prosecuted for unlawful act manslaughter. In order for the defendant to be convicted the prosecution needed to establish that there had been an unlawful and dangerous act. The prosecution’s case was that the defendant had inflicted serious psychological injury on the deceased contrary to section 20 of the Offences Against the Person Act, through repeated psychological abuse and some physical abuse. However, two of the three psychiatric experts who were consulted by the prosecution, while being of the view that the deceased had experienced psychological symptoms resulting from her experience of domestic abuse, were unable to conclude that she had suffered from an identifiable psychiatric condition. It was held that the scope of ‘bodily harm’ was limited to recognizable psychiatric illness, and the defendant was therefore acquitted.8 Prosecuting cases of psychological abuse using the 1861 Act was therefore very problematic, and this remained the position in Northern Ireland until the enactment of the 2021 legislation.9

COERCIVE CONTROL

In recent times, it has been recognized that physical violence is just one aspect of domestic abuse, and that psychological abuse, commonly referred to as ‘coercive control’, can be just as damaging.10 As Herring comments, ‘The concept of coercive control is an attempt to identify one of the wrongs at the heart of domestic abuse. It does so by showing that domestic abuse is a particular kind of relationship rather than being a particular kind of act’.11 Fitz-gibbon, Walklate, and McCulloch state that, ‘Coercive control illuminates domestic abuse as a pattern of behaviours, within which physical violence may exist alongside a range of other abusive behaviours’.12 Jeffries explains that the tactics of perpetrators of coercive control may include emotional abuse such as blaming the victim or undermining her self-esteem and self-worth; verbal abuse such as humiliation and degradation; systematic social isolation; economic abuse, for example controlling all finances; threats and intimidation; and physical abuse.13 According to Women’s Aid, ‘Coercive control creates invisible chains and a sense of fear that pervades all elements of a victim’s life. It works to limit their human rights by depriving them of their liberty and reducing their ability for action’.14 As Herring remarks, ‘Fear is often at the heart of coercive control and is its primary vehicle. Violence may or may not, be used as one tool’.15

With the recognition of coercive control came the realization by many that a discrete offence was needed in order to capture the harms involved. As Tolmie explains,

Interpersonal violence offences are constructed primarily in terms of incidents. As a result the criminal justice system fragments long-standing patterns of IPV into separate offences…Each incident is taken out of the pattern in which it occurs and proven and responded to in isolation. A corollary of this point is that the criminal offences are primarily constructed in terms of the use of physical violence. This means that IPV is also stripped of much of its overall architecture—those aspects of the pattern of abuse that are psychological and financial, for example, along with the motivations of the abuser and the cumulative effect on the victim. As a consequence, the totality and meaning of the perpetrator’s behaviour, the continuing risk he poses and the weight of harm experienced by the victim are all potentially misunderstood and minimized at every stage of the criminal justice process—investigation, charging, trial and sentencing.16

Similarly, Bettinson and Bishop argue that, ‘the creation of an offence of controlling or coercive behaviour in an intimate or family relationship is necessary in order for the criminal law to better reflect the reality of the central harm of domestic violence’.17 As Youngs comments,

Domestic violence is a wrong qualitatively different from any other. Once its unique character is established, analysis reveals that the current law, in relation to both physical and psychological abuse, does not address the totality of harm suffered by victims, the sustained nature of the wrong or the intent of the perpetrator.18

The necessity for the criminalization of psychological abuse has also been recognized in regional and international human rights standards. For example, article 33 of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention), which the United Kingdom has signed but not yet ratified, states that, ‘Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalized’. Indeed one of the factors which was taken into account in the creation of a domestic abuse offence for Northern Ireland was that this would ensure compliance with the Istanbul Convention.19 In the case of Volodina v Russia,20 the European Court of Human Rights recognized that the feelings of anxiety, fear and powerlessness which are caused by coercive and controlling behaviour can amount to inhuman treatment under article 3 of the European Convention on Human Rights (the right to be free from torture and inhuman or degrading treatment or punishment). In addition, in its General Recommendation 19 the UN Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) recognized that ‘coercion’ can amount to gender-based violence.21 Indeed in its 2019 Concluding Observations on the United Kingdom’s eighth periodic report, the CEDAW Committee expressed concern in relation to the legislative position regarding gender-based violence in Northern Ireland and recommended that the United Kingdom, ‘Adopt legislative and comprehensive policy measures to protect women from all forms of gender-based violence throughout the State party’s jurisdiction, including Northern Ireland’.22 The creation of the new domestic abuse offence in this jurisdiction goes some way towards alleviating such concerns, and the fact that the clear deficiency in Northern Ireland’s legislative response to domestic abuse has now been addressed is certainly very much to be welcomed.

Given the growing recognition that specific legislative steps were needed in order to respond adequately to the issue of domestic abuse, coercive and controlling behaviour was criminalized in England and Wales under section 76 of the Serious Crime Act 2015.23 Abusive behaviour (including psychological abuse) towards a partner or ex-partner was then criminalized in Scotland under section 1 of the Domestic Abuse (Scotland) Act 2018.24 In addition, coercive control was criminalized in the Republic of Ireland under section 39 of the Domestic Violence Act 2018. As regards Northern Ireland, in February 2016 the Department of Justice launched a public consultation on whether a specific offence of coercive and controlling behaviour should be created. Respondents were generally of the view that the introduction of such an offence would be a positive step which would send a clear message that domestic abuse in all its forms would not be tolerated in society. Respondents also believed that the creation of a specific offence would give the police the opportunity to intervene early and possibly prevent domestic abuse from escalating.25 Legislation criminalizing coercive control was subsequently drafted for Northern Ireland, however the passage of this stalled due to the suspension of the Northern Ireland Assembly from January 2017 until January 2020.26 This meant that, until March 2021, Northern Ireland was the only jurisdiction within the United Kingdom and Ireland in which coercive control was not criminalized.

NORTHERN IRELAND’S DOMESTIC ABUSE OFFENCE

However, in March 2020, the Domestic Abuse and Family Proceedings Bill was introduced in the Northern Ireland Assembly. The Explanatory and Financial Memorandum to the Bill states that the introduction of an offence of domestic abuse would give effect ‘to the intention to improve the operation of the justice system by creating an offence that recognizes the experience of victims, the repetitive nature of abusive behaviour and the potential cumulative effect of domestic abuse’.27 It was intended that, ‘By enabling a range of domestic abuse incidents, which take place over a period of time, to be prosecuted as a single course of behaviour within a new offence, the criminal law (would) better reflect how victims actually experience such abuse’.28 It is notable that the provisions of the Bill relating to the domestic abuse offence were ultimately enacted with very little amendment. The legislation received Royal Assent on 1 March 2021 and was enacted as the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021.

Section 1 of this Act is entitled, ‘the domestic abuse offence’, and section 1(1) states that:

A person (‘A’) commits an offence if—

  • (a) A engages in a course of behaviour that is abusive of another person (‘B’),

  • (b) A and B are personally connected to each other at the time, and

  • (c) both of the further conditions are met.

Under section 1(2), the further conditions are:

  • (a) that a reasonable person would consider the course of behaviour to be likely to cause B to suffer physical or psychological harm, and

  • (b) that A—

    • (i) intends the course of behaviour to cause B to suffer physical or psychological harm, or

    • (ii) is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm.

The Financial and Explanatory Memorandum states that, ‘The court would be entitled to take account of the circumstances of the case, for example any particular vulnerability of the partner/connected person, in considering whether the accused’s behaviour would be likely to cause them to suffer physical or psychological harm’.29 In relation to section 1(2)(b)(ii), the Memorandum asserts that this condition could be met where, for example, the defendant is persistently verbally abusive and demeaning, but claims that they did not intend their behaviour to result in harm.30 Section 1(3) states that the references to ‘psychological harm’ include ‘fear, alarm and distress’.

Section 2(2) addresses the meaning of ‘abusive’ and states that;

Behaviour that is abusive of B includes (in particular)—

  • (a) behaviour directed at B that is violent,

  • (b) behaviour directed at B that is threatening,

  • (c) behaviour directed at B, at a child of B or at someone else that—

    • (i) has as its purpose (or among its purposes) one or more of the relevant effects, or

    • (ii) would be considered by a reasonable person to be likely to have one or more of the relevant effects.

According to section 2(3), the ‘relevant effects’ referred to above are:

  • (a) making B dependent on, or subordinate to, A,

  • (b) isolating B from friends, family members or other sources of social interaction or support,

  • (c) controlling, regulating or monitoring B’s day-to-day activities,

  • (d) depriving B of, or restricting B’s, freedom of action,

  • (e) making B feel frightened, humiliated, degraded, punished or intimidated.

The Explanatory and Financial Memorandum states that the inclusion of the relevant effects that can indicate that behaviour is abusive was ‘intended to ensure that, for example, psychological abuse, or controlling or coercive behaviour that could not currently be prosecuted under existing offences, falls within the definition of abusive behaviour (as well as violent or threatening behaviour)’.31 During Assembly debates on the Bill, the Justice Minister, Naomi Long, commented that, ‘The effects of the abusive behaviour set out in the Bill are deliberately broad, recognizing that each person’s experience will be different’.32 Section 3 clarifies that the offence can be committed ‘whether or not A’s behaviour actually causes B to suffer harm of the sort referred to in section 1(2)’,33 and that ‘A’s behaviour can be abusive of B by virtue of section 2(2)(c) whether or not A’s behaviour actually has one or more of the relevant effects set out in section 2(3)’.34

Section 4(2) addresses the meaning of ‘behaviour’ and states that:

Behaviour is behaviour of any kind, including (for example)—

  • (a) saying or otherwise communicating something as well as doing something,

  • (b) intentionally failing —

    • (i) to do something, or

    • (ii) to say or otherwise communicate something.

The Explanatory and Financial Memorandum states that, ‘This could include, for example, a failure to pass on times and dates of appointments or social occasions, a failure to feed a family pet or a failure to speak to or communicate with an individual’.35 Under section 4(3),

Behaviour is directed at a person if it is directed at the person in any way, including (for example)—

  • (a) through—

    • (i) conduct relating to the person’s ability to acquire, use or maintain money or other property or the person’s ability to obtain goods or services, or

    • (ii) other conduct concerning or towards property, or

  • (b) by making use of a third party,

as well as in a personal or direct manner.

As regards section 4(3)(a), the Explanatory and Financial Memorandum clarifies that such conduct could be with regard to shared property or property belonging to parents, and that property would include pets or other animals whether belonging to the victim or to others.36 In relation to section 4(3)(b), the Memorandum states that the behaviour in question could involve, for example, using a third party to spy on or report on the victim’s activities.37 Under section 4(4), ‘A course of behaviour involves behaviour on at least two occasions’.

Section 5(2) states that the parties are ‘personally connected’ if they are, or have been, married to each other38 or civil partners of each other;39 they are living together, or have lived together, as if spouses of each other;40 they are, or have been, otherwise in an intimate personal relationship with each other;41 or they are members of the same family.42 According to section 5(3), being ‘members of the same family’ encompasses B being A’s parent, grandparent, child, grandchild, sister or brother.

Under section 8(1), the offence is aggravated if the victim was under the age of 18 at the time when the offence was committed; and under section 9(1), the offence is also aggravated if a relevant child is involved, for example if a child witnessed the offence taking place. According to section 9(2) ‘involving a relevant child’ occurs if

  • (a) at any time in the commission of the offence—

    • (i) A directed, or threatened to direct, behaviour at the child, or

    • (ii) A made use of the child in directing behaviour at B, or

  • (b) the child saw or heard, or was present during, an incident of behaviour which A directed at B as part of the course of behaviour, or

  • (c) a reasonable person would consider the course of behaviour, or an incident of A’s behaviour that forms part of the course of behaviour, to be likely to adversely affect the child.

Under section 9(8)(a), a ‘relevant child’ is defined as being a person under the age of 18 who is not A or B. During Assembly debates on the Bill, the Justice Minister stated that, ‘We…know that witnessing domestic abuse is devastating for children and can have a long-lasting impact on their well-being…I consider these provisions essential in recognizing the damaging effect that domestic abuse can have on children’.43 Section 9(3) was not included in the provisions of the Bill as introduced, but was added in order to make it clear that in order for the offence to be aggravated due to the involvement of a child, there does not need to be any evidence that the child in question had ever had any awareness or understanding of A’s behaviour,44 or had ever been adversely affected by this behaviour.45 The Committee for Justice reported that there was widespread support for the aggravator clauses in the evidence received on the Bill.46

However, according to section 11(1), A does not commit the domestic abuse offence in relation to B by engaging in behaviour that is abusive of B at a time when B is under the age of 16 and A has responsibility for B. Also, under section 12(1), ‘it is a defence for A to show that the course of behaviour was reasonable in the particular circumstances’. In relation to the latter, the Committee for Justice was of the view that, ‘given the scope of the offence and the wide personal connection, the Clause provides a necessary balance to the Bill’.47 However, the Committee proceeded to state that it expected the Department of Justice ‘to closely monitor the use of this defence’, and that if there is ‘any indication that the defence is being manipulated by perpetrators or is providing a “loophole” for abusive behaviour the Department must take swift action to provide a remedy’.48

Under section 14, a person who commits the domestic abuse offence is liable, on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both);49 or, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).50

COMPARISON WITH RELEVANT PROVISIONS FOR ENGLAND AND WALES, SCOTLAND, AND IRELAND

In the Department of Justice’s public consultation of February 2016, respondents were of the view that any new offence should ‘reflect and recognize the course of conduct and pattern of behaviour involved’.51 It is notable that, whereas section 76 of the Serious Crime Act 2015, which applies in England and Wales, uses the phrase ‘controlling or coercive behaviour’, section 1(1)(a) of the 2021 Act refers to ‘a course of behaviour that is abusive of another person’. Substantially more detail is provided in the 2021 Act on the type of behaviour in question, with the meanings of both ‘abusive’ and ‘behaviour’ expanded upon in the legislation. By contrast, there is no guidance given in section 76 as to the meaning of ‘controlling or coercive’ or of ‘behaviour’. Although some such information is provided in the Statutory Guidance to the 2015 Act,52 it seems that it is meritorious in terms of certainly and clarity that the terms of the 2021 provisions are more precisely defined in the legislation itself. Likewise, the 2021 provisions are substantially more detailed in this regard than is section 39 of the Republic of Ireland’s Domestic Violence Act 2018, which refers to behaviour which is ‘controlling or coercive’,53 with no further guidance given in the legislation as to the meaning of these terms.

The terminology used in the 2021 Act is however very similar to that used in the Domestic Abuse (Scotland) Act 2018, in that the latter refers to the concept of ‘abusive behaviour’. In expanding upon the meaning of this term, the wording of section 2 of the Scottish legislation is very similar to that of section 2 of the Northern Irish Act in relation to the meaning of ‘abusive’, and in explaining the meaning of ‘behaviour’, section 10 of the Scottish Act is framed in a very similar manner to section 4 of the Northern Irish legislation as regards the meaning of ‘behaviour’. Section 4 of the 2021 Act does however contain more detail as regards the inclusion of economic abuse within the behaviour in question. Whereas section 10(3)(a) of the Scottish legislation simply refers to behaviour being carried out ‘by way of conduct towards property’, section 4(3)(a) of the 2021 Act refers to ‘conduct relating to the person’s ability to acquire, use or maintain money or other property or the person’s ability to obtain goods or services,54 or other conduct concerning or towards property’.55 Women’s Aid state that, ‘The manipulation of money and other economic resources is one of the most prominent forms of coercive control, depriving women of the material means needed for independence, resistance and escape’.56 It seems therefore that the inclusion of further detail on this form of abuse in the 2021 Act is to be welcomed.

Section 4(4) of the 2021 Act states that, ‘A course of behaviour involves behaviour on at least two occasions’. Conversely, section 76 of the Serious Crime Act does not use the phrase ‘a course of behaviour’, but instead refers to ‘repeatedly or continuously’ engaging in behaviour that is controlling or coercive.57 There is no further detail in the legislation as to the meaning of the phrase ‘repeatedly or continuously’, although under section 76(4), in order for the offence to be committed the behaviour in question must cause the victim to fear, on at least two occasions, that violence will be used against them,58 or cause the victim serious alarm or distress which has a substantial adverse impact on their normal day-to-day activities.59 There is also some further guidance on the meaning of the phrase ‘repeatedly or continuously’ to be found in the Statutory Guidance to the 2015 Act.60 While the Scottish legislation uses the term ‘a course of behaviour’,61 the meaning of this term is not defined. Section 39 of the Republic of Ireland’s Domestic Violence Act refers to ‘persistently’ engaging in the relevant behaviour,62 with again no further guidance in the legislation as to the meaning of this term. The precision demonstrated in the 2021 Act in this regard is meritorious as again this furthers certainty and clarity.

Under section 1(1)(b) of the 2021 Act, the domestic abuse offence can only be committed if ‘A and B are personally connected to each other’. The requirement for a personal connection between the parties is also found in section 76(1)(b) of the Serious Crime Act. Although the definition of ‘personally connected’ contained in section 76(2) and (6) of the latter is not identical to that found in section 5 of the 2021 Act, under both pieces of legislation the relevant offences can pertain in situations beyond those in which the parties are intimate partners. During Assembly debates on the Northern Irish legislation, the Justice Minister, stated that, ‘the devastating impact of familial domestic abuse on victims should not be underestimated and should be captured by this new offence’.63 This differs sharply from the approach taken in the Scottish provisions. Under section 1(1) of the Domestic Abuse (Scotland) Act, the offence in question is limited to a course of behaviour which is abusive of the defendant’s partner or ex-partner. Likewise, the offence of coercive control found in the Republic of Ireland’s Domestic Violence Act must be committed against a ‘relevant person’,64 with this phrase being defined as being the spouse or civil partner of the defendant or a person who is or was in an intimate relationship with the defendant.65 As Cairns comments,

On the one hand, it can be argued that there is a stronger case for narrowness in the interests of capturing effectively the distinct moral wrong of domestic abuse (which has been said to arise from its systematic nature and the abuse of trust involved) and avoiding overcriminalisation. On the other hand, it can be argued that if individuals other than partners or ex-partners are also capable of experiencing systematic abuse that erodes their freedom and has a significant impact on their daily lives, then the offence should be more widely available to ensure that these individuals are not arbitrarily denied legal protection based on relationship status.66

It is also notable that while the definition of ‘personally connected’ found in section 5(2) of the 2021 Act includes those who have lived together as if spouses of each other, this category is not included in the definition found in section 76 of the Serious Crime Act. Ex-partners are however included under section 1(1) of the Scottish legislation and section 39(4) of the Republic of Ireland’s legislation. Respondents to the Department of Justice’s 2016 consultation were of the opinion that a domestic abuse offence should encapsulate situations in which ex-partners are continuing to use coercive control even after separation,67 and it seems that such an approach is meritorious. As Cairns remarks, ‘Research has consistently shown that those in abusive relationships are at greatest risk of serious abuse when they are trying to leave their partner or when recently separated’.68 In addition, child contact arrangements can provide opportunities for former partners to engage in abuse.69 Of all of the jurisdictions within the United Kingdom and Ireland, Northern Ireland has adopted the most expansive approach to those coming within the ambit of the relevant provisions, and it seems that this is to be welcomed as such an approach provides protection for the greatest number of those suffering abuse.

In addition to engagement in a course of behaviour that is abusive, and the existence of a personal connection between the parties, for an offence to be committed under section 1 of the 2021 Act, it must also be established that a reasonable person would consider the course of behaviour to be likely to cause physical or psychological harm,70 and that the defendant intends the course of behaviour to cause physical or psychological harm,71 or is reckless as to whether such harm is caused.72 The references to ‘psychological harm’ include ‘fear, alarm and distress’.73 Section 3(1) states that the offence can be committed whether or not the behaviour in question actually caused harm of this nature. This approach mirrors that found in section 1(2) and (3) and section 4(1) of the Domestic Abuse (Scotland) Act. By contrast, for an offence to be committed under section 76(1) of the Serious Crime Act, the behaviour must have a ‘serious effect’ on the victim,74 and the defendant must know or ought to have known that the behaviour would have such an effect.75 According to section 76(5), the defendant ‘ought to know’ that which ‘a reasonable person in possession of the same information would know’. As noted above, under section 76(4) the behaviour in question will be deemed to have had a ‘serious effect’ if it causes the victim to fear, on at least two occasions, that violence will be used against them,76 or it causes the victim serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities.77 Section 39 of the Republic of Ireland’s Domestic Abuse Act adopts a broadly similar approach to that of section 76 of the Serious Crime Act, in that under section 39(1) of the Irish legislation, for an offence to be committed the defendant must ‘knowingly’ engage in the relevant behaviour, this behaviour must have ‘a serious effect’78 and it must be established that a reasonable person would consider the behaviour likely to have such an effect.79 The term ‘knowingly’ is not however defined further in the legislation. Under section 39(2), the behaviour will be deemed to have had ‘a serious effect’ if it causes the victim ‘to fear that violence will be used against him or her’,80 or causes the victim ‘serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities’.81 Unlike section 76(4)(a) of the Serious Crime Act, there is no requirement that the victim has feared that violence will be used against them ‘on at least two occasions’. The approach adopted by the 2021 Act, as with the Scottish legislation, is therefore broader than that adopted by section 76 of the Serious Crime Act and also section 39 of the Republic of Ireland’s Domestic Violence Act.

In addition, under the Northern Irish and Scottish legislation, for an offence to be committed, there is no need to prove that the behaviour in question actually caused harm, but simply that the behaviour was likely to cause physical or psychological harm, and that the defendant intended to cause such harm or was reckless as to whether such harm was caused. As the Justice Minister stated during Assembly debates on the Northern Irish Bill, this reflects ‘the resilience of the victim or that, for many, abusive behaviour has effectively become normalized’.82 Herring comments in relation to the Scottish legislation that, ‘This approach has some benefits as it allows for a prosecution in cases where the victim is unwilling or reluctant to give evidence and so proof of the impact on them is difficult’.83 As Bishop and Bettinson discuss, the need to prove that serious harm has occurred has caused problems in establishing successful prosecutions under section 76 of the Serious Crime Act, and it seems meritorious that this requirement has not been adopted under the 2021 Act.84

Under section 8(1) of the 2021 Act, the domestic abuse offence is aggravated if the victim was under the age of 18 at the time when the offence was committed. There is no equivalent provision in the relevant legislation of any of the other jurisdictions in question, and the inclusion of this provision in the Northern Irish legislation is to be welcomed. Under section 9(1), the offence is also aggravated if a relevant child is involved, for example if a child witnessed the offence taking place. An equivalent provision is found in section 5 of the Domestic Abuse (Scotland) Act, and the fact that the Northern Ireland Assembly has chosen to replicate this is meritorious, given the harm that can be caused to children by exposure to domestic abuse.85 By contrast, neither section 76 of the Serious Crime Act nor section 39 of the Republic of Ireland’s Domestic Violence Act contain such a provision.

Under section 11(1) of the 2021 Act, A does not commit the domestic abuse offence in relation to B by engaging in behaviour that is abusive of B at a time when B is under the age of 16 and A has responsibility for B. No such provision is found in the Scottish or Irish legislation, as such situations do not come within the ambit of these Acts. An equivalent provision is however found in section 76(3) of the Serious Crime Act. According to the Statutory Guidance to the latter, the rationale for the inclusion of this provision was that abusive behaviour in such circumstances was already covered by other aspects of the criminal law.86

In addition, under section 12(1) of the 2021 Act, ‘it is a defence for A to show that the course of behaviour was reasonable in the particular circumstances’. A similar defence is found in section 6 of the Domestic Abuse (Scotland) Act. A ‘reasonableness’ defence is also contained in section 76(8) of the Serious Crime Act, although for this defence to be applicable, not only must the behaviour in question be ‘in all the circumstances reasonable’,87 but the defendant must in addition show that he or she was acting in the best interests of the person against whom the behaviour is exerted.88 It is also stated that this defence cannot be used in relation to behaviour that causes fear of violence.89 No such ‘reasonableness’ defence is contained in section 39 of the Republic of Ireland’s Domestic Violence Act.

Under section 14 of the 2021 Act, a person who commits the domestic abuse offence is liable, on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both);90 or, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).91 This is identical to the penalties which may be imposed for committing an offence under section 1 of the Domestic Abuse (Scotland) Act. By contrast, a person found guilty of an offence under section 76 of the Serious Crime Act or section 39 of the Republic of Ireland’s Domestic Violence Act is liable on conviction on indictment to a term of imprisonment of only five years.92 Bishop remarks in relation to the section 76 offence that, ‘As it carries a maximum sentence of only five years imprisonment, there is…an inference that it is less serious in nature than direct physical violence’.93 Bishop points out that coercive control may cause extreme psychological harm, which can result in victims taking their own lives, and proceeds to comment that, ‘if coercion and control were viewed along the same lines as the spectrum of criminal offences against the person, arguably at its very peak, it is as serious as an offence of grievous bodily harm with intent and thus should carry the same maximum sentence of life imprisonment’.94 A number of respondents to the Department of Justice’s public consultation of February 2016 emphasized ‘the need for a strong sentencing regime with the offence, to reflect the seriousness of domestic abuse/coercive and controlling behaviour and the significant adverse impact this type of abuse has on victims’.95 It certainly seems meritorious that the Northern Ireland Assembly took note of such responses and chose to follow the approach of the Scottish legislation by adopting a maximum term of imprisonment of 14 years for commission of the new domestic abuse offence. During Assembly debates on the Bill, the Justice Minister commented that, ‘It is …essential that we set a penalty that corresponds with the seriousness of the offence’.96 As stated in the Explanatory and Financial Memorandum, ‘The nature of the penalties is intended to reflect the cumulative nature of the offence over time, that it may cover both physical and psychological abuse and also the intimate and trusting nature of the relationships involved’.97 In its consideration of the Bill, the Committee for Justice stated that, ‘the penalties demonstrate the seriousness with which the crime of domestic violence and abuse is viewed and sends a message to the perpetrators, the victims and the general public in Northern Ireland that such crimes are not acceptable and will not be tolerated’.98

REMAINING CONCERNS

However, while the enactment of the new domestic abuse offence is certainly a crucial development, it is important to remember that this will not be a ‘silver bullet’ as regards the issue of domestic violence in Northern Ireland. As Bettinson and Robson comment,

a new offence alone will not improve criminal justice responses to domestic abuse; police, prosecutorial authorities and the courts interpret the law, therefore success in any legal jurisdiction will be based upon ongoing education of the public and specialist training of criminal justice personnel.99

Difficulties have arisen regarding the implementation of offences of coercive control, and it is likely that such problems may also occur in relation to implementing Northern Ireland’s new domestic abuse offence. As Bettinson and Robson remark, ‘The discrepancy between the number of prosecutions and police recorded offences suggests that the prosecution authorities are facing difficulties bringing cases of coercive control before the courts’.100 Such problems may manifest in particular in cases in which the victim does not wish to give evidence in court, a situation which may arise if, for example, the victim wishes to continue the relationship, fears retaliation from the perpetrator, or distrusts the court process.101 Essentially,

The nature of oral evidence in these cases is that it exposes the victim to public scrutiny of their lifestyle, intimate relationships and decision making. A victim may be unwilling to expose themselves to this examination having been humiliated by the perpetrator and experiencing feelings of shame and embarrassment. It is also difficult to discuss the harm when it involves activities which are, on the face of it, not recognisably criminal as the prospects of success may be perceived as low; this is particularly true where the tactics used are non-physical.102

However, ‘The difficulty in prosecuting the s.76 offence without the victim’s testimony is the nature of the behaviour criminalized means that it is generally performed in private and cannot be easily evidenced through alternative means’.103

It is however notable that steps have been taken in the 2021 Act to assist complainants in giving evidence in cases involving the domestic abuse offence. Section 23 of the legislation amends article 5 of the Criminal Evidence (Northern Ireland) Order 1999 to make such complainants eligible for special measures when giving evidence. These special measures may include screening the complainant from the accused;104 giving evidence by means of a live link;105 giving evidence in private;106 or video recording the complainant’s evidence in chief,107 cross-examination or re-examination.108 In addition, section 24 of the 2021 Act inserts a new article 22A into the 1999 Order, stating that no person charged with an offence involving domestic abuse may cross-examine the complainant in person. During Assembly debates on the legislation, the Justice Minister commented in relation to these provisions that,

Shamefully, some abusers also seek to use the criminal justice system itself to further victimise their partner, ex-partner or family member. For that reason, the Bill includes safeguards to prevent an abuser using the criminal justice process to further exert control and influence over a victim. These provisions should help to minimise the trauma for the victim, while ensuring that the proper administration of justice is achieved…Together, I believe that the provisions will help victims to give the best evidence that they can in court, and also reduce the number of victims disengaging from the criminal justice system.109

Likewise, the Chairperson of the Committee for Justice, Paul Givan, remarked that, ‘It is essential to ensure that victims of domestic abuse are not revictimised by contact with the criminal justice process and that victims have their needs taken into account at appropriate points in the process’.110

Nevertheless, while it is undoubtedly essential to ensure that appropriate legislation is in place on which an adequate criminal justice response can be based, there are other aspects of responding to domestic abuse which are of equal importance, such as the provision of social support measures for victims and increasing awareness within society as a whole. As Schneider remarks, ‘Legal intervention may provide women certain protection from battering, but it does not provide women housing, support, child care, employment, community acceptance, or love. It also does not deal with the economic realities of life’.111 Randall comments that legal responses can only be one part of a comprehensive strategy to address a complex issue such as domestic abuse.112 Indeed Schneider argues that far more important than criminalization,

is the need for provision of state and state-supported resources to deal with the real problems that battered women face—child care, shelters, welfare, work…—and thus make it possible for women to have the economic and social independence that is a prerequisite to women’s freedom from abuse.113

Northern Ireland is currently the only jurisdiction within the United Kingdom which does not have a strategy specifically dedicated to addressing gender-based violence. On 9 March 2021 Women’s Aid launched a petition calling on the Northern Ireland Assembly to develop and implement a strategy on violence against women and girls. As noted by Women’s Aid, ‘To effectively tackle violence against women, coordinated action from government is required, including preventative measures, early intervention and protection, and victim-centred justice to address the lack of services and barriers faced by women and girls’.114 While the new domestic abuse offence is certainly a step in the right direction, further sustained efforts will be needed in order to address sufficiently domestic violence in Northern Ireland.

CONCLUSION

In conclusion therefore, the enactment of the new domestic abuse offence for Northern Ireland is certainly an immensely positive development. The introduction of this offence brings Northern Ireland into line with the other jurisdictions within the United Kingdom and Ireland, and also with human rights standards, in terms of criminalizing coercive and controlling behaviour. Being the final jurisdiction within the United Kingdom and Ireland to criminalize such behaviour has allowed Northern Ireland’s approach to be informed by the earlier legislation enacted in the other jurisdictions and, in certain respects, has enabled Northern Ireland to ‘cherry pick’ the best aspects of the approaches of these jurisdictions. As the Justice Minister stared during Assembly debates on the Bill, ‘Importantly, as part of our deliberations, we…considered offences in other jurisdictions relating to controlling and coercive behaviour, including what is often perceived as the Scottish gold standard’.115 For example, while no guidance is included in section 76 of the Serious Crime Act or in section 39 of the Republic of Ireland’s Domestic Violence Act on the meaning of coercive and controlling behaviour, the Domestic Abuse (Scotland) Act contains substantially more detail on the meaning of ‘abusive behaviour’,116 which seems to be meritorious in terms of clarity and certainty. The language used by the Scottish Act in this respect was then used largely as a template for the new Northern Irish legislation.117

Likewise, unlike with section 76 of the Serious Crime Act and section 39 of the Republic of Ireland’s Domestic Violence Act, to establish an offence under the Domestic Abuse (Scotland) Act, there is no need to prove that the behaviour in question actually had a serious impact on the victim, but simply that the behaviour was likely to cause physical or psychological harm, and that the defendant intended to cause such harm or was reckless as to whether such harm was caused.118 As discussed above, it seems that the need to prove that serious harm has occurred has caused difficulties in establishing successful prosecutions under section 76 of the Serious Crime Act, and it appears meritorious that Northern Ireland has also adopted the Scottish approach in this respect.119

In addition, Northern Ireland chose to follow the Scottish approach in terms of the penalties applicable, with a person who commits the domestic abuse offence being liable on conviction on indictment to imprisonment for a term not exceeding 14 years.120 By contrast, a person found guilty of an offence under section 76 of the Serious Crime Act or section 39 of the Republic of Ireland’s Domestic Violence Act is liable on conviction on indictment to a term of imprisonment of only five years.121 Given the immense harm which can be caused by coercive and controlling behaviour, it certainly seems praiseworthy that Northern Ireland chose to follow the approach of Scotland in this regard. Likewise, Northern Ireland chose to follow the Scottish precedent whereby the offence is aggravated if a relevant child is involved, for example if a child witnessed the offence taking place.122 The fact that the Northern Ireland Assembly also chose to follow the Scottish example in this respect is again meritorious, given the substantial harm that can be caused to children by exposure to domestic abuse.123

There are also aspects of Northern Ireland’s domestic abuse offence which differ from the approaches in any of the other jurisdictions in question. For example, as discussed above, under both the Domestic Abuse (Scotland) Act124 and the Republic of Ireland’s Domestic Violence Act,125 the offences are only applicable where the victim and perpetrator are either partners or ex-partners. By contrast, section 76 of the Serious Crime Act covers coercive and controlling behaviour as between various family members,126 however ex-partners are not included within the definition of those who are ‘personal connected’ for the purposes of the provision. Northern Ireland has however adopted the most expansive approach to those coming within the ambit of the new domestic abuse offence,127 and it seems that this is to be welcomed as such an approach provides protection in the greatest number of situations. Also, there is no equivalent provision in the relevant legislation in any of the other jurisdictions to section 8(1) of the 2021 Act, under which the domestic abuse offence is aggravated if the victim was under the age of 18 at the time when the offence was committed. The inclusion of this provision in the Northern Irish legislation is also to be welcomed.

However, the new domestic abuse offence will not be a complete panacea to the problem of domestic violence in Northern Ireland. As discussed above, difficulties may arise in relation to prosecuting the offence. Also, legislation in itself is insufficient as regards addressing domestic abuse, and further sustained efforts are necessary to tackle this issue. Nevertheless the enactment of the new offence certainly represents a crucial development as regards Northern Ireland’s response to domestic abuse.

1

Amnesty International UK Northern Ireland: With Domestic Violence at All-Time High, Funding Urgently Needed for Frontline Groups (18 May 2020) <https://www.amnesty.org.uk/press-releases/northern-ireland-domesticviolence-all-time-high-funding-urgently-needed-frontline> (accessed 5 April 2021).

2

Northern Ireland Statistics and Research Agency Domestic Abuse Incidents and Crimes Recorded by the Police in Northern Ireland: Update to 31 December 2020 (25 February 2021) <https://www.psni.police.uk/globalassets/inside-the-psni/our-statistics/domestic-abuse-statistics/2020–21/q3/domestic-abuse-bulletin-dec-20.pdf> (accessed 5 April 2021).

4

Amnesty International UK, n 1.

5

[1997] 4 All ER 225.

6

M Burton Legal Responses to Domestic Violence (Routledge-Cavendish Abingdon 2008) 61.

7

(2006) 2 Cr App R 24.

8

See Burton, n 5, 62. For further discussion of the concept of ‘bodily harm’, see C Bishop ‘Domestic Violence: The Limitations of a Legal Response’ in S Hilder and V Bettinson (eds) Domestic Violence – Interdisciplinary Perspectives on Protection, Prevention and Intervention (Palgrave Macmillan London 2016) 59, 70–1.

9

For discussion of domestic violence historically in Northern Ireland, see M McWilliams and J McKiernan Bringing It out in the Open: Domestic Violence in Northern Ireland (HMSO Belfast 1993); and E Evason Hidden Violence: A study of Battered Women in Northern Ireland (Farset Co-operative Press Belfast 1982).

10

For discussion of the concept of coercive control, see E Stark Coercive Control: How Men Trap Women in Personal Life (Oxford University Press Oxford 2007); E Stark ‘Rethinking Coercive Control’ (2009) 15 Violence Against Women 1509; E Stark ‘Looking Beyond Domestic Violence: Policing Coercive Control’ (2012) 12 Journal of Police Crisis Negotiations 199; E Stark ‘Rethinking Coercive Control’ (2009) 15 Violence Against Women 1509; TL Kuennen ‘Analysing the Impact of Coercion on Domestic Violence Victims: How Much is Too Much?’ (2007) 22 Berkeley Journal of Gender, Law and Justice 2; and E Williamson ‘Living in the World of the Domestic Violence Perpetrator: Negotiating the Unreality of Coercive Control’ (2010) 16 Violence Against Women 1412.

11

J Herring Domestic Abuse and Human Rights (Intersentia Cambridge 2020) 26.

12

K Fitz-gibbon, S Walklate and J McCulloch ‘Editorial Introduction’ (2018) 18 Criminology and Criminal Justice 3, 3.

13

S Jeffries ‘In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments that Guide Judicial Determinations’ (2016) 5 Laws 14, 15.

14

Women’s Aid What is Coercive Control? <https://www.womensaid.org.uk/information-support/what-is-domestic-abuse/coercive-control/> (accessed 5 April 2021).

15

Herring, n 11, 27.

16

JR Tolmie ‘Coercive Control: To Criminalize or not to Criminalize?’ (2018) 18 Criminology and Criminal Justice 50, 51–2.

17

V Bettinson and C Bishop ‘Is the Creation of a Discrete Offence of Coercive Control Necessary to Combat Domestic Violence?’ (2015) 66 Northern Ireland Legal Quarterly 179, 196.

18

J Youngs ‘Domestic Violence and Criminal Law: Reconceptualising Reform’ (2015) 79 Journal of Criminal Law 55, 56. For further discussion of the need for a discrete offence, see M McMahon and P McGorrery (eds) Criminalising Coercive Control: Family Violence and the Criminal Law (Springer Singapore 2020); M Burman and O Brooks-Hay ‘Aligning Policy and Law? The Creation of a Domestic Abuse Offence Incorporating Coercive Control’ (2018) 18 Criminology and Criminal Justice 67; V Bettinson ‘Criminalising Coercive Control in Domestic Violence Cases: Should Scotland Follow the Path of England and Wales? (2016) Criminal Law Review 165; H Douglas ‘Do We Need a Specific Domestic Violence Offence?’ (2015) 39 Melbourne University Law Review 434; C Hanna ‘The Paradox of Progress: Translating Evan Stark’s Coercive Control into Legal Doctrine for Abused Women’ (2009) 15 Violence Against Women 1458; V Tadros ‘The Distinctiveness of Domestic Abuse: A Freedom Based Account’ (2005) 65 Louisiana Law Review 989; and D Tuerkheimer ‘Recognising and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence’ (2004) 94 Journal of Criminal Law and Criminology 959.

19

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 4.

20

[2019] ECHR 539, para 75.

21

Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women (1992), para 6.

22

Committee on the Elimination of Discrimination Against Women, ‘Concluding observations on the eighth periodic report of the United Kingdom of Great Britain and Northern Ireland’ CEDAW/C/GBR/CO/8 (14 March 2019) para. 30(b).

23

For discussion of section 76 of the Serious Crime Act 2015, see V Bettinson and J Robson ‘Prosecuting Coercive Control: Reforming Storytelling in the Courtroom’ (2020) 12 Criminal Law Review 1107; P McGorrery and M McMahon ‘Criminalising “The Worst” Part: Operationalizing the Offence of Coercive Control in England and Wales’ (2019) 11 Criminal Law Review 957; V Bettinson ‘Aligning Partial Defences to Murder with the Offence of Coercive or Controlling Behaviour’ (2019) 83 Journal of Criminal Law 71; and C Bishop and V Bettinson ‘Evidencing Domestic Violence, Including Behaviour that Falls under the New Offence of “Coercive and Controlling Behaviour”’ (2018) 22 International Journal of Evidence and Proof 3.

24

For discussion of the Domestic Abuse (Scotland) Act 2018, see I Cairns ‘The Moorov Doctrine and Coercive Control: Proving a “Course of Behaviour” under s. 1 of the Domestic Abuse (Scotland) Act 2018’ (2020) 24 International Journal of Evidence and Proof 396; EE Forbes ‘The Domestic Abuse (Scotland) Act 2018: The Whole Story?’ (2018) 22 Edinburgh Law Review 406; ICM Cairns ‘What Counts as “Domestic”? Family Relationships and the Proposed Criminalization of Domestic Abuse in Scotland’ (2017) 21 Edinburgh Law Review 262; and M Hughes ‘The Domestic Abuse (Scotland) Act 2018: A General Guide and Civil Ramifications’ (2019) 20 Scots Law Times 59.

25

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 1–2.

26

See BBC News New abuse law ‘held up by lack of NI Assembly’ (19 January 2018) <https://www.bbc.co.uk/news/uk-northern-ireland-42739589> (accessed 5 April 2021).

27

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 4.

28

Ibid., 5.

29

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 6.

30

Ibid., 7.

31

Ibid., 7.

32

Northern Ireland Assembly, Official Report: 28 April 2020.

33

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 3(1).

34

Ibid., section 3(2).

35

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 8.

36

Ibid., 8.

37

Ibid., 8.

38

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 5(2)(a).

39

Ibid., section 5(2)(b).

40

Ibid., section 5(2)(c).

41

Ibid., section 5(2)(d).

42

Ibid., section 5(2)(e).

43

Northern Ireland Assembly, Official Report: 28 April 2020.

44

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 9(3)(a).

45

Ibid., section 9(3)(b).

46

Committee for Justice, Report on the Domestic Abuse and Family Proceedings Bill, Report: NIA 48/17–22, 15 October 2020, para 70.

47

Ibid., para 376.

48

Ibid., para 378.

49

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 14(a).

50

Ibid., section 14(b).

51

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 2.

52

Home Office Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework (December 2015) 4–5.

53

Domestic Violence Act 2018, section 39(1)(a).

54

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 4(3)(a)(i).

55

Ibid., section 4(3)(a)(ii).

56

Women’s Aid What Is Financial Abuse? <https://www.womensaid.org.uk/information-support/what-is-domestic-abuse/financial-abuse/> (accessed 5 April 2021).

57

Serious Crime Act 2015, section 76(1)(a).

58

Ibid., section 76(4)(a).

59

Ibid., section 76(4)(b).

60

Home Office, n 52, 5.

61

Domestic Abuse (Scotland) Act 2018, section 1(1)(a).

62

Domestic Violence Act 2018, section 39(1).

63

Northern Ireland Assembly, Official Report: 28 April 2020.

64

Domestic Violence Act 2018, section 39(1).

65

Ibid., section 39(4).

66

Cairns (2017), n 24, 265–6.

67

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 2.

68

Cairns (2017), n 24, 265. See also C Connelly and K Cavanagh ‘Domestic Abuse, Civil Protection Orders and the “New Criminologies”: Is there any Value in Engaging with the Law’ (2007) 15 Feminist Legal Studies 259, 279; and C Humphreys and RK Thiara ‘Neither Justice Nor Protection: Women’s Experiences of Post-separation Violence’ (2003) 25 Journal of Social Welfare and Family Law 195.

69

Cairns (2017), n 24, 265. See also A Barnett ‘“Like Gold Dust These Days’: Domestic Violence Fact-Finding Hearings in Child Contact Cases’ (2015) 23 Feminist Legal Studies 47.

70

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 1(2)(a).

71

Ibid., section 1(2)(b)(i).

72

Ibid., section 1(2)(b)(ii).

73

Ibid., section 1(3).

74

Serious Crime Act 2015, section 76(1)(c).

75

Ibid., section 76(1)(d).

76

Ibid., section 76(4)(a).

77

Ibid., section 76(4)(b).

78

Domestic Abuse Act 2018, section 39(1)(b).

79

Ibid., section 39(1)(c).

80

Ibid., section 39(2)(a).

81

Ibid., section 39(2)(b).

82

Northern Ireland Assembly, Official Report: 28 April 2020.

83

Herring, n 11, 124.

84

Bishop and Bettinson, n 22, 10–2.

85

O Mills ‘Effects of Domestic Violence on Children’ (2008) Family Law 165.

86

Home Office, n 34, 6.

87

Serious Crime Act 2015, section 76(8)(b).

88

Ibid., section 76(8)(a).

89

Ibid., section 76(10).

90

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 14(a).

91

Ibid., section 14(b).

92

Serious Crime Act 2015, section 76(11)(a); and Domestic Violence Act, section 39(3)(b).

93

Bishop, n 8, 72.

94

Bishop, n 8, 72.

95

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 2.

96

Northern Ireland Assembly, Official Report: 28 April 2020.

97

Domestic Abuse and Family Proceedings Bill, Explanatory and Financial Memorandum, 11.

98

Committee for Justice, Report on the Domestic Abuse and Family Proceedings Bill, Report: NIA 48/17–22, 15 October 2020, para 420.

99

Bettinson and Robson, n 22, 1110.

100

Bettinson and Robson, n 22, 1108.

101

Bishop and Bettinson, n 22, 6. See further, L Ellison ‘Prosecuting Domestic Violence Without Victim Participation’ (2002) 65 Modern Law Review 834; A 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; and A Cretney and G Davis ‘Prosecuting Domestic Assault: Victims Failing Courts, or Courts Failing Victims?’ (1997) 36 Howard Journal 146.

102

Bettinson and Robson, n 22, 1114.

103

Bettinson and Robson, n 23, 1114.

104

Criminal Evidence (Northern Ireland) Order 1999, article 11.

105

Ibid., article 12.

106

Ibid., article 13.

107

Ibid., article 15.

108

Ibid., article 16.

109

Northern Ireland Assembly, Official Report: 28 April 2020.

110

Ibid.

111

EM Schneider Battered Women and Feminist Lawmaking (Yale University Press New Haven 2000) 52.

112

M Randall ‘Symposium: Domestic Violence and the Law: Theory, Policy, and Practice: Domestic Violence and the Construction of “Ideal Victims”: Assaulted Women’s “Image Problems” in Law’ (2004) 23 Saint Louis University Public Law Review 107, 144.

113

Schneider, n 111, 196–7.

114

Women’s Research and Development Agency Women’s Aid Launch a Petition for a Violence Against Women and Girls Strategy in NI (9 March 2021) <https://wrda.net/2021/03/09/womens-aid-launch-a-petition-for-a-violence-against-women-and-girls-strategy-in-ni/> (accessed 5 April 2021).

115

Northern Ireland Assembly, Official Report: 28 April 2020.

116

Domestic Abuse (Scotland) Act 2018, sections 2 and 10.

117

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, sections 2 and 4.

118

Domestic Abuse (Scotland) Act 2018, sections 1(2) and 4(1).

119

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, sections 1(2)(b)(ii) and 3(1).

120

Ibid., section 14(b).

121

Serious Crime Act 2015, section 76(11)(a); and Domestic Violence Act 2018, section 39(3)(b).

122

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 9(1), and Domestic Abuse (Scotland) Act 2018, section 5.

123

Mills, n 85.

124

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 1(1).

125

Domestic Violence Act 2018, section 39(4).

126

Serious Crime Act 2015, sections 76(2) and (6).

127

Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, section 5.

© The Author(s) 2021. Published by Oxford University Press.

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