Domestic Violence Protection Notices and Orders

Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.

Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, it is the male who are the recipient of the Domestic Violence Protection Notices even where there are cross allegations.

The effect of Domestic Violence Protections Notices is to force the removal of recipients from the named property.  This is for an initial period of 48 hours.  This will then be followed by an application to the local Magistrates’ Court for a Domestic Violence Protections Order.  This order can result in a person’s removal from the premises for a further 28 days.

The rationale behind this process is to give the supposed victim of domestic violence the ‘breathing space’ they might need to seek assistance.

Can You Challenge a Notice?

Domestic Violence Protection Notices are issued in a relatively informal way.  Because of this, there is no realistic way to challenge them before they take effect.  As a result, any later successful challenge will only result in a mostly pyrrhic victory.

You are able, however, to challenge the application for the Domestic Violence Protection Order.  We will be able to assist you in that process.

The legal framework for Domestic Violence Protection Orders

The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).

The facts in this case are typical of many of the cases that we see before the courts.  The supposed beneficiary did not actively support the making of the order.  She was Mr Kerr’s partner of eight years.

The High Court upheld the legislative scheme in its entirety, observing that:

‘…within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.’

Is Kerr wrongly decided?

There is no case law cited in the judgement so as a result it is open to argument whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327.  In that case, where when considering whether to make a restraining order, the Court of Appeal observed:

‘‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.

It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make.

Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How Can We Assist?

When new judgements come along, they are often presented as offering the complete answer to a legal problem.  In our experience, they seldom do.  Consideration  has to be had to earlier decisions, particularly ones that had not considered in any new case.

Because of this, where appropriate, we will be more than happy to challenge such cases.  We can advance alternative arguments where there is a legal basis to do so.

If you are facing the prospect of a Domestic Violence Protection Order following service of a Domestic Violence Protection Notice please contact one of our expert criminal law solicitors.

You can find your nearest office here.

Alternatively you can use the contact form below.