Official Report: Minutes of Evidence

The Chairperson (Mr Givan): We are joined by Ms Louise Kennedy, regional policy and information coordinator; and Ms Sharon Burnett, management coordinator in Causeway Women’s Aid. You are both very welcome. As with previous sessions, this session will be recorded by Hansard, and the transcript will be published in due course. Please briefly outline the key issues in your document, and then members will go through it section by section and ask questions. If everyone is clear, we will proceed, and I will hand over to you.

Ms Sharon Burnett (Women's Aid Federation Northern Ireland): We want to start by giving a brief summary of the services delivered across Northern Ireland because many people do not understand the extent of the services that we deliver and the necessity for victims to have them. We provide refuges across Northern Ireland, as well as support; outreach services; a 24-hour domestic and sexual violence helpline; training; support for women engaging with the criminal justice system from the very initial interaction with the PSNI and the whole way through the court process; children’s services; and engagement in arenas such as the Committee.

We have been very encouraged by the extensive work undertaken by the Justice Committee and the Department of Justice to make the justice system more victim-focused because, in our experience, it is justice agency-centred as opposed to victim-centred. We would like to preface our comments by saying that, for victims of domestic violence, criminal justice is only a small part of the picture. For most victims, protection and support are gained through a civil system, through non-molestation orders, multi-agency risk assessment conferences (MARACs), and through support organisations such as ours.

While non-molestation orders are a civil issue, they are the very first contact that the vast majority of victims will have with the courts system; it is often a very negative experience that subsequently taints their view of the criminal justice system.

When victims of domestic violence seek criminal justice, they face a number of barriers and revictimisation by the system, in that they are asked to repeat very traumatic experiences time and time again. They risk more abuse from perpetrators by way of reprisals or intimidation for issues like withdrawing complaints and suffer significant delays in cases going through courts with adjournment after adjournment. We talked a bit about that earlier.

There are mixed messages about special measures. Some people say that they were never told about them; others say that they were told about them but were advised not to access them because it would be detrimental to the outcome of the case. It is not uncommon for victims to be told that. The criminal justice system that we see time and time again does not have sufficient understanding of domestic violence. There is a real need for criminal justice staff to be trained in relation to it.

The last thing that I will say before I pass you over to Louise is that many components of domestic violence are not, in fact, criminal. Therefore the system does not deal with the spectrum of abuse; it deals with a particular incident, but victims very much see that particular incident as part of a full spectrum. That can taint their view of the criminal justice system as well. In the view of Women’s Aid, there are real merits in having a crime of coercive control to reconcile the reality of domestic violence. However, I accept that that is a discussion for another day. I will pass you over to Louise.

Ms Louise Kennedy (Women's Aid Federation Northern Ireland): With all that in mind, we would like to share our views on the different aspects of the Bill. We are aware that, in our submission, we commented mostly on the amendments, but we are aware that when we were called for oral evidence, we were asked to comment also on the main clauses of the Bill, so we are willing to do that if the Committee sees fit.

The Chairperson (Mr Givan): In respect of what?

Ms L Kennedy: In respect of the victims' charter, the violent offences prevention orders and prosecutorial fines.

The Chairperson (Mr Givan): Please do.

Ms L Kennedy: First, we welcome the victims' charter and the work done to get it this far and the fact that it has been placed on a statutory footing. We note, however, that there is no statutory entitlement per se in the Bill for specialist support services for victims or the charter. Article 4 of the victims' directive states that a victim must be informed about any specialist support relevant to them at first contact with a competent authority. The EU directive and guidance specifically mentioned domestic violence in that respect.

We have worked with victims who have dealt with police, solicitors, barristers and more general support services that do not have domestic violence expertise. Many victims have come to us midway through the process and said that they have been left feeling frustrated about the process and misunderstood and that the advice that they had been given to that point might have been inappropriate in relation to domestic violence. When they were pointed to Women’s Aid much later in the process, they said that if they had received the right expert support from the beginning, their experience and interaction with the system might have been much better.

It also links in to the importance of identifying vulnerable victims at the earliest possible stage to ensure that they are offered things such as special measures. That assessment is often done at a very early stage when police are involved. Therefore, it is crucial that, at that early stage, there is the direction and referral to the special services and that victims are subsequently treated appropriately throughout the rest of their engagement with the criminal justice system.

Very quickly, I want to mention that the Bill says:

Notwithstanding our appreciation of the importance of judicial independence, our concern is that, without proper training on specialist issues, such as domestic violence, many provisions of the charter might be rendered effectively meaningless for victims of domestic or sexual violence if they are being heard by a judge who does not have an expert understanding of the issues.

Article 25 of the victims' directive specifically calls for the specialist training of judges. We say that not to damn the judicial profession, by any means, but because we see inconsistencies across Northern Ireland in expertise. Expert training is vital.

Moving on to violent offences prevention orders, serial domestic violence perpetrators are a huge problem; it is a serial perpetration issue. Some mechanism is needed to prevent serial perpetrators from being able to move from one victim to the next with impunity.

Since the introduction of MARACs, which Sharon mentioned, it would be easy to identify serial perpetrators. Even if there has been no criminal conviction — which, often, there is not — we recognise that those victims are victims, and they are recognised as such in MARACs and by the agencies involved.

So, it is disappointing that, with regard to the orders, the threshold may render them effectively unusable in many cases against serial perpetrators of domestic violence. The reason is that, throughout our discussions with the panel and the victims' advisory subgroup, it became clear to us that the orders may not be of practical use in domestic violence cases, as most individual instances of domestic violence crime may have quite a low threshold. For example, you might have an instance of criminal damage or something that would be considered a "minor crime", yet that does not take into consideration the months or even years of psychological and emotional abuse or other instances of physical abuse that have not been reported. It is said that it takes 35 instances of physical abuse or attack before a woman will come forward . Domestic violence is a hidden social problem, and incidences of violence are not being reported. It is common for a case to go to court where a woman has been abused for many months or years, and what is being dealt with is something that does not bear any resemblance to the reality of the situation. We do not feel that these orders will do anything to help because of the low threshold of occasions of actual bodily harm.

Very briefly, on delay, we welcome the statutory framework being put in place to manage criminal cases. The consequences of protracted proceedings would be enormously damaging to victims of domestic and sexual violence, particularly the ability of the victim to retain confidence in the system and to continue in the process.

It is well established that perpetrators of domestic violence will often attempt to use a legal process or any opportunity to further exact power, control and manipulation and to continue to abuse the victim by delaying, frustrating or subverting the justice process and trying to put pressure on a victim to withdraw evidence. We are of the opinion that all criminal justice issues should have systems in place to recognise that that takes place and, when it happens, to try to guard against it.

Moving on to prosecutorial fines, we wanted to bring up the point that it might be worrying if crimes with a domestic motivation fell under this. If such cases were dealt with using prosecutorial fines, it might send a message to perpetrators that they can act with impunity or the "It's just a domestic" myth that society holds dear. It could also make it more difficult for something like Clare’s law in England, which is the disclosure law, to be implemented in Northern Ireland because many perpetrators would not have a criminal record with which to reference for women seeking information about serial perpetrators. It would reinforce the myth that it was "just a domestic", and it might deter victims even from coming forward in the first place to report such crimes since, most likely, the very high risk of doing so would not be worth it if it is just going to be a fine at the end of the day. In short, it could put women’s lives in danger.

It could also punish victims, particularly if finances are shared and there is financial abuse in a relationship. For example, someone might have to pay a fine, but the person who is ultimately paying is the victim because the finances are coming from that party.

Moving to the Department of Justice amendments, we support the change to an opt-out system for victims receiving information about support services. Often, in the initial stage, victims are dealing with a lot of information, they have had a very traumatic experience, and it may take some time for them to process exactly what is happening and what has happened to them. Having an opt-out system gives victims the opportunity to consider support options, once the initial traumatic event has passed, with a clearer head. The choice will remain whether they avail themselves of the services in the end.

With regard to the amendment on criminal records, Women’s Aid is in favour of a better exchange of information, since, as we explained, "minor crimes" do not reflect the true gravity of an abuser’s situation. Given what we said about that, there are difficulties in securing convictions and a likelihood of more criminal convictions being "minor", even though the perpetrator in question might be dangerous and violent. We therefore have reservations about a system that may remove any cautions or minor convictions relating to domestic violence from a perpetrator’s record. That would especially be the case if, for example, a perpetrator’s modus operandi had been to target vulnerable young people or adults and then go into a job or voluntary role to work with such people.

We appreciate the provision about having discretion regarding that kind of review. However, having no domestic violence-related criminal convictions in a very long time, perhaps 10 years, does not mean that that person has not been a perpetrator. No conviction does not mean that it is not still happening; MARACs are evidence of that. That is the gist of our comments; we are happy to take questions.

The Chairperson (Mr Givan): Thank you very much. There are a couple of points that I want to raise. Do you believe that the Bill provides enough clarity on how victims’ statements would be used by judges?

Ms L Kennedy: We are very happy to see that a victim’s impact statement can be used. However, it also requires someone getting to court. If prosecutorial fines are taken away from them, you are depriving the victim of the impact to make a statement in the first place. Those situations are vital for the victim to be able to say to the judge, "They are a danger to society. This is the full extent of the abuse that has occurred against me". They are very useful, as it is very cathartic for a victim to be able to make a statement and to go beyond the very narrow construction of criminal offences relating to domestic violence.

The Chairperson (Mr Givan): On the criminal records aspect, do you have a view on wiping the slate clean when a child reaches the age of 18? The point has been raised with us that, once you reach the age of 18, criminal records should be wiped clean.

Ms L Kennedy: Maybe Sharon will take that question.

Ms Burnett: Children with criminal records is not something that we specifically looked at because we were looking at adult offenders and perpetrators, although we do significant work with children and young people. My personal view is that there has to be some serious consideration as to the point where you look at a complete wiping of the slate or at the level of conviction prior to that to see what should and should not be removed. I assume that that is for you to decide. However, significant crimes prior to 18 should be on the record, but minor crimes should not be carried forward into adult life.

Mr Frew: May I ask a supplementary question?

The Chairperson (Mr Givan): I am going to let members cover all the aspects; I am not going to do it section by section.

Mr Frew: I do not mean to butt in if you are not finished.

The Chairperson (Mr Givan): No, I am finished.

Mr Frew: You talked about serious crimes. What about types of crimes? If a minor is involved in domestic or sexual violence, is there merit in keeping something like that on the record or should we wipe the slate clean on that or other types of offences?

Ms Burnett: I suppose that I should have been clear. In my mind, when I was talking about minor and more serious crimes, I was thinking about types of crime. Violence and sexual issues jump out at me as things that would have to involve serious consideration if we wanted those to disappear for somebody at the age of 18. That is my personal view, but, when we looked at the issue, we looked at it more with regard to adult perpetrators of domestic violence.

Ms L Kennedy: It is also pertinent to say that you would be hard-pressed to find a young person in the offender system who has not experienced domestic violence within the family. A lot of the work we do with children and young people recognises that, even if a child is not directly abused in the home but has witnessed abuse, there will be trauma. Their education, well-being and health and their ability to function in society, form relationships at school and excel at school and so forth are seriously impacted. Some of that acting out or reacting to the very grave situation that they are in within their family can sometimes spill out and result in them being in some level of criminality. There is a rounder view to be taken on that with regard to how it can impact on children.

Mr Frew: I know you have a list there. I will go to the end of the list, and you can move on.

Mr A Maginness: Chair, I have to leave in a few minutes. Does that matter in relation to the quorum?

The Chairperson (Mr Givan): The meeting can go on, but we cannot action anything. That would be a difficulty.

Mr Frew: We would be lost without you, Alban.

Mr A Maginness: I know you would.

Mr Lynch: You got in before me.

Mr A Maginness: Sorry.

Thank you very much for your contribution. It was very interesting and helpful. I pay tribute to the good work that you do. You want domestic violence to be exempted from prosecutorial fines. Is that your bottom line?

Ms L Kennedy: I think so, yes.

Mr A Maginness: And it is a red line for you, if I may put it that way. Is it?

Ms L Kennedy: Yes, because of the absolute disparity that there is between what can end up in court and be convicted — the amount that it takes for a victim to be able to get to that point — versus the reality of what the abuse is. We have people in MARACs who are high-risk offenders and real threats to victims, but they do not have a blemish on their record, or perhaps they have something very small. If it has a domestic motivation, it could, sometimes, be the difference.

Mr A Maginness: So it is a hidden thing.

Ms L Kennedy: Absolutely.

Mr A Maginness: And that is the danger they are in. Do you see VOPOs as a necessary tool in combating domestic violence?

Ms L Kennedy: We certainly see something along those lines as being necessary. At the moment, there is a gap in dealing with serial perpetrators. We know that a lot of perpetrators move on from one person to the next person to the next. Sharon could maybe talk about that in more detail. We know that that happens. At present, while we can refer a woman to a MARAC, something else needs to be there in order to prevent that impunity and that serial perpetration, to break that habit for more victims to continue to be abused. Something needs to be there. Given the threshold, we do not think that, in their current form, those orders will cover a lot of the cases they will probably be needed for, where there are serial perpetrators in Northern Ireland.

Mr A Maginness: Chair, I am afraid I have to go. Sorry.

The Chairperson (Mr Givan): Have you five minutes?

Mr A Maginness: Yes.

The Chairperson (Mr Givan): I am going to stop this session. There are two legislative consent motions that we need to put through.

Mr A Maginness: I will stay.

The Chairperson (Mr Givan): If you are happy to stay at that end of the table, we will come back to this.

The Chairperson (Mr Givan): Sorry for that interruption. I appreciate that that has slightly upset proceedings.

Mr Lynch: You do not want to be on the Justice Committee. I think that you mentioned delays, Louise. Where do you think that the causes of the delays lie? Is it with the court process or with the PSNI? You said that training needs to take place in the criminal justice system. You intimated that they see as it incidents, while it is often a pattern. The conviction rate is very low. I do not know what it is here, but it has a very low rate of reporting, a low rate of charging and an even lower rate of conviction.

Ms L Kennedy: Do you have any comments on what you are finding with delay in your area?

Ms Burnett: There are two things that happen. One is, as the Law Society mentioned, the length of time to investigate and the length of time to get forensics. There are those practicalities, but there is also the issue of perpetrators not attending court etc. That comes up on a range of occasions. Before I came here today, I spoke to one of my staff to see about a couple of examples. One case of assault occasioning actual bodily harm that happened in January is coming to court in November, and it has been adjourned since May. So that goes on and on and on. An attempted murder case happened in April, and, seven months later, there is not even a date set for court, so it has not even got to the point of being adjourned. It is even the processes of the court itself before it even gets to the opportunity for a perpetrator to potentially not turn up and provide difficulties along the way. Put the two of those together and you can have significant delays and significant negative impacts on victims attending court, and it is significantly more likely for them to get to the point where they say, "Do you know what? I am withdrawing," and that is it.

Ms L Kennedy: Every delay gives a perpetrator the opportunity to exert control, manipulation and coercion in order to frustrate the case and see that justice is not done. We believe that delay is not just a victims' issue; it is also a best evidence issue. The more confidence that the victim feels that they have in the system and the safer that they feel, the better they are able to give evidence. Delays do impact negatively on that, for all of the reasons that Sharon mentioned.

Ms Burnett: One of the things that we said at the very start was that the criminal justice system was justice agency-centred rather than victim-centred. You get regular examples of court cases at some quite considerable distance for victims to travel. Those are known about for weeks and weeks and weeks, and you can be told on a Monday that you were supposed to be in court on Friday but that it is being brought forward to Thursday. That impacts on the victim, solicitors, barristers and support agencies. Do not forget that an individual may have four or five children whom she has gone to considerable lengths to have looked after etc. Moving something forward a day makes a huge difference, and there is no leniency for victims, as far as we can see. Once things are changed, they are supposed to be there. That is why we are very clear that the first thought is not, "How will this impact upon the victim?" It is: "How can we as a system make sure we use up an empty spot? Somebody has take the Friday off or something has happened". Of course, we do not want it to be adjourned and adjourned, but it is the attitude, even with those type of things —

Mr Lynch: Do you see the victims' charter as having a positive role to play in that process?

Ms Burnett: I think it should, as long as we are clear that we try in every single instance to look at victims in two ways: one, how this is going to have an impact on any victim; and, two, having a better understanding of the actual nature of domestic violence, so that we are not treating all victims as one homogeneous group.

Ms L Kennedy: In answer to your question about training needs, yes, a lot of the criminal justice agencies, police, and so forth tend to look at domestic violence as incidents rather than as part of a whole pattern. It is fair enough in the sense that police are there to deal with an incident, but we would say two things. With training, all criminal justice staff, agencies, judges and police can be enabled to understand the pattern of abuse and the fact that it is not just criminal incidents or physical incidents. There is psychological coercion and control. It is not bad all the time. There is a reason why victims stay. Also, they stay because they are not necessarily safe if they go. I believe that if all those things are understood, everyone is able to do their job more effectively, confident in the knowledge that they know what they are dealing with.

We appreciate that police are not social workers; they have a job to do. That is why we say that, at the earliest possible opportunity, there should be referral to specialist services who are able to round off that square and to pick up the rest of those aspects to make sure that the victim is getting all the aspects of support that they need and that the whole picture is understood. That is why that is particularly important.

You had a question about rates of conviction being very low. Yes, like we said, we sit at MARACs, and there are a lot of high-risk victims. MARAC is only for people at serious risk of injury or death. The perpetrator might not have any criminal convictions at all.

As we have already said, it takes an awful long time for something to be reported. Anecdotally we have found that even those who are supported in our services or on the 24-hour domestic and sexual violence helpline may never be able to speak about the most serious aspects of the abuse, for example, sexual violence within an intimate relationship. There are some things that are just so horrendous and have had such a traumatic impact that people cannot talk about it for a very long time, or perhaps ever.

We need to recognise that the criminal justice system as it is now, and just having those physical crimes as the crimes, is not covering everything, and that there is a government-recognised other side to domestic violence. If you look at the strategy, there is recognition of psychological and financial abuse as well. We have to understand that there are other elements, and it spreads out not only to the civil courts, with regard to non-molestation orders, but also to the family courts, through contact proceedings, divorce and separation. Domestic violence does impact there, and there needs to be support and understanding there, as well.

Mr Frew: With regard to the VOPOs, is it your thinking that we need more defined prevention orders for domestic violence or sexual offences? Should we have a range of prevention orders or, rather, one violence offence prevention order to do everything?

Ms L Kennedy: For one to do everything, you would have to look seriously at the thresholds. Obviously, sexual violence is per se a serious crime. Domestic violence incidents are not. As we have said, not everything is covered there. I suppose the Committee would probably know better than I. You would need to either rework the VOPOs to be able to take into consideration all those different elements or have something that is more tailored to domestic violence put in place.

The issue that we have always found is that there is a unique element to domestic violence with that relationship. It is not a stranger committing a crime against a stranger. There are repercussions and there are differences, and there are also differences in the way victims may react, because, at the end of the day, they are in a relationship, or it is a family member. Those things need to be taken into consideration, and that element of abuse. Control and manipulation need to be taken into consideration as well, and that victim protected even more. I do not think I would have a particular preference for one or the other, but definitely something would have to be tailored to be able to take into consideration all the circumstances.

Mr Frew: You could have a range of prevention orders that do different things and carry lesser or serious consequences. Would you be happy with that?

Ms Burnett: That is not what I heard you say. Is that fair? I apologise if I have picked you up wrong, because one of us has. You were talking about a range of different VOPOs.

Ms L Kennedy: Either a range of different types of order or a more tailored VOPO, which is widened to encompass it and does not have that threshold that is prohibitive.

Mr Frew: Does that necessarily mean a change of name or a set of different initials for a face of a Bill? How do you get that nailed down? To me, you need to have specifically different orders to cater for the different aspects of crime that you talk about.

Ms L Kennedy: I suppose not every criminal activity that has a domestic motivation is a violent crime. There are things like criminal damage; there are other things that are wider than that. Obviously, assault is a massive one. If it is a matter of the name of it reflecting something, perhaps it is the case that there should be something about domestic violence in there, but we have not thought through the particular detail beyond what we have discussed with a panel of victims' advisers.

Mr Frew: I heard what you said about the impacts of domestic violence and that an act might be perpetrated once, and then other minor things that are not breaking the law after that will be the threat, which could impact just as much, then, as the initial act of violence towards a person. So it would be bullying, threatening or an action that will not lead to a crime being committed but will impact the same. How do we nail that?

Ms Burnett: That is why we mentioned the hope that in the future a course of control would be something that would be seen as criminal. That is not the position that we are in right now, but it is something that Women's Aid will be advocating for in the longer term. The other things in relation to VOPOs were, one, repeat abuse within a single relationship but then, secondly, the serial offenders that Women's Aid has had experience of over the last 40 years. That has been brought into stark relief with the MARACs that happen across Northern Ireland every month, and the realisation that there are extremely dangerous perpetrators who have appeared and appear time and time again with different victims. There are very serious incidents there — some with criminal convictions, some not.

For us, it will also be a case of how we look at somebody who does not reach the threshold for the VOPO but has repeated low-level offences that are all linked to domestic violence, in the knowledge that the nature of domestic violence is that it is not one instance in a relationship and is repeated etc and has a significant impact. We, as a society, as Women's Aid, as the PSNI, as social services, as probation, as everybody who sits around the table at the MARAC might be worrying, once a particular name is said, how long it will be before it happens again. We know that it is highly likely that that individual will be on MARAC again because they are in a new relationship. If all the statutory organisations and voluntary organisations such as ourselves can see that but their criminal convictions are too low-level to have a VOPO, we have to look at it and say, "What is the threshold for how many times it happens before we say that it is enough to meet the threshold for a VOPO?" That would be another way of looking at it at this time.

The Chairperson (Mr Givan): Thank you both very much for coming to the Committee. Apologies for the delay and then the interruption. That is the nature of Committee business sometimes.