‘Go’ orders (where suspicion rules)
Posted: Wednesday 8 December 2010
On 25 November 2010, the Home Secretary, Theresa May, announced a year-long pilot scheme which is to be trialled in three police areas in England next year. The proposed scheme will see suspected perpetrators of domestic abuse being removed from their homes for a period of 48 hours, and possibly up to 28 days if extended by the court.
Under the new scheme, police can issue a domestic violence protection order, known as a ‘Go’ order, when there is a suspicion of abuse. Whilst statistics show that more women are the victims of domestic abuse than men, the orders can apply to either sex. The scheme raises several questions, and concerns. One such is the legality, and possible Human Rights implications (Articles 6, 8 and 14), of removing an individual from their home without first giving them an opportunity to be heard by a court. Commentary on the scheme refers to giving the victim breathing space to consider whether they want to go to court or not. It is not, however, clear what is to happen at the end of the exclusion period. Is the alleged perpetrator simply to return home and that, in the absence of the victim formally reporting the abuse to the police, is the end of the matter?
There is no doubt that domestic abuse, in various forms, is an issue across the UK and that victims require appropriate protection. However, establishing the guilt of an alleged abuser is a matter for the court. The police may have a role in assessing the requirement of protective orders, but many may regard it as a step too far to further empower the police to execute decisions based on mere suspicion. ‘Go’ orders can be issued where there is insufficient evidence to charge a suspect. Thus, the discretion afforded to the police seems untenably wide.
It is reported that many victims of abuse feel unable to report their abuser to the police. The implied benefit of ‘Go’ orders appears to be that the police can take action on their behalf. The corollary of that proposition is that some putative “victims” make totally unfounded allegations of abuse to the police, and the mere fact of making the allegation may give rise to an assumption that it must be true or partly true. The distress caused by such accusations, particularly in cases of unfounded sexual abuse, can be very grave. We in the Morton Fraser family law team have had two recent and conspicuous examples of such unscrupulous behaviour. Such cases are in the minority, but they are nevertheless important.
It is in the nature of such events that they tend to occur behind closed doors. There is no evidence other than the say so of an apparently distressed victim. One can envisage scope for abuse of such orders, for example, where the police have received calls from someone who is in the midst of relationship breakdown or domestic dispute but is not in fact the victim of abuse. Faced with competing accounts from the complainer and the alleged abuser, are the police to exercise their discretion by being suspicious of the individual who is least articulate, least convincing or least believed? This is largely a subjective test, and therefore, almost by definition, unsatisfactory.
At present this scheme is not intended to apply to Scotland. In this jurisdiction, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 introduced protective measures in the form of exclusion orders whereby a spouse (or cohabitant) can be excluded from the family home and also interdicted from approaching the applicant spouse. The court will grant such an order, “where it appears to the court that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child”. Such orders can be obtained on an interim (emergency) basis, provided the alleged abuser has been afforded an opportunity of being heard by the court. The Scottish Parliament recognised that there was a need for further protective measures. The Protection from Abuse (Scotland) Act 2001 allows a power of arrest to be attached to an interdict. The police may arrest the interdicted person without warrant if they have reasonable cause for suspecting that person of being in breach of the interdict and consider that there would, if that person were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict. In such cases, the complainer has already obtained an interdict from the court. They have satisfied the court that the power of arrest is necessary. Further, the court will only grant a power of arrest if satisfied that the interdicted person has been given the opportunity to be heard by, or represented before, the court. The Scottish position maintains appropriate checks and balances as between the complainer and the complained against party. The police can also revert to the basic breach of the peace law and encourage a troublesome individual to remove from the home for a short period, or impose bail conditions requiring them to do so.
Depriving an individual of the right to occupy their own home is a significant step and the law in Scotland respects that by providing a procedural and evidential framework. Achieving that outcome based on suspicion alone sets a potentially dangerous precedent which impacts on the rights of all individuals. In the meantime, we await with interest assessments of the scheme from south of the border.
Louise Laing, Solicitor, Family Law Team
7 December 2010
