Northern Ireland’s New Domestic Abuse Offence
Dr Ronagh McGuigg looks at the recent introduction of a specific offence of domestic abuse in Northern Ireland and how it represents a crucial development in Northern Ireland’s response to domestic violence.
In March 2021 a specific criminal law 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. The new legislation has the effect of criminalising coercive and controlling behaviour, thus bringing Northern Ireland into line with the other jurisdictions within the UK and Ireland, and also with relevant human rights standards. 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.
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. 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’. 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. Given the high rates of domestic abuse, it is clear that legislative change was needed in order to provide a sufficient response.
The Domestic Abuse Offence
According to section 1 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, it is a criminal offence to engage in a course of behaviour that is abusive of another person where the parties are personally connected to each other; a reasonable person would consider the course of behaviour to be likely to cause physical or psychological harm; and the perpetrator intends the course of behaviour to cause physical or psychological harm, or is reckless as to whether the course of behaviour causes such harm. ‘Psychological harm’ includes fear, alarm and distress.
Under section 2, behaviour that is abusive includes, in particular, behaviour that is violent or threatening. Abusive behaviour also includes behaviour which has the effect of making the victim dependent on, or subordinate to, the perpetrator; isolating the victim from friends, family members or other sources of social interaction or support; controlling, regulating or monitoring the victim’s day-to-day activities; restricting the victim’s freedom of action; or making the victim feel frightened, humiliated, degraded, punished or intimidated.
According to section 5(2), the parties are ‘personally connected’ if they are, or have been, married to each other or civil partners of each other; they are living together, or have lived together, as if spouses of each other; they are, or have been, otherwise in an intimate personal relationship with each other; or they are members of the same family. 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 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) or, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both). However, under section 12, it is a defence to show that the course of behaviour in question was reasonable in the particular circumstances, and under section 11(1), a person does not commit the domestic abuse offence if the course of behaviour was carried out in relation to someone for whom they have responsibility and who is under the age of 16.
Problems with the Previous Legislative Position
Prior to the enactment of the new legislation, there was no specific criminal law offence of domestic abuse in Northern Ireland. 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. However, in recent times it has been recognised that physical violence is just one aspect of domestic abuse, and that other forms of abuse such as psychological abuse, commonly referred to as ‘coercive control’, can be just as damaging. As Women’s Aid state,
‘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.’
In light of this, coercive and controlling behaviour was criminalised in England and Wales under section 76 of the Serious Crime Act 2015; abusive behaviour (including psychological abuse) towards a partner or ex-partner was criminalised in Scotland under section 1 of the Domestic Abuse (Scotland) Act 2018; and coercive control was criminalised in the Republic of Ireland under section 39 of the Domestic Violence Act 2018. Although such legislation had been drafted for Northern Ireland, the passage of this had stalled due to the suspension of the Northern Ireland Assembly from January 2017 until January 2020. This meant that, until March 2021, Northern Ireland was the only jurisdiction within the UK and Ireland in which coercive control was not criminalised. The fact that this clear deficiency in the legislative response to domestic abuse in Northern Ireland has now been rectified is certainly very much to be welcomed.
Human Rights Standards
The necessity for the criminalisation of psychological abuse has also been recognised 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 UK 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 criminalised.’
In the case of Volodina v Russia, the European Court of Human Rights recognised 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, the UN Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) had expressed concern in relation to the legislative position regarding gender-based violence in Northern Ireland. In its 2019 Concluding Observations on the UK’s eighth periodic report, the Committee recommended that the UK,
‘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.’
The creation of the new domestic abuse offence in Northern Ireland goes some way towards alleviating such 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 complete panacea to the issue of domestic violence in Northern Ireland. Whilst 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 violence which are of equal importance, such as the provision of social support measures for victims and increasing awareness within society as a whole.
In particular, Northern Ireland is currently the only jurisdiction within the UK 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.’
In addition, in April 2021 a follow-up review was published in respect of a 2019 report by Criminal Justice Inspection Northern Ireland (CJINI) on the handling of domestic abuse cases by the criminal justice system. Although seven recommendations had been made in the 2019 report, the follow-up review found that only one of these had been implemented, with four having been partially achieved and one not implemented. The CJINI Chief Inspector, Jacqui Durkin, welcomed the new domestic abuse legislation and also evidence that the PSNI and the Public Prosecution Service for Northern Ireland had improved how they shared information and worked together as regards domestic abuse cases.
In addition, she commended the collaborative work which had been carried out by the PSNI-led Domestic Abuse Independent Advisory Group, in terms of responding quickly to the need for increasing numbers of victims to access services as a result of the COVID-19 pandemic. However Ms Durkin also commented that she was
‘disappointed with the pace of progress and that key recommendations to implement an advocacy service to support victims of domestic violence and abuse and establish regional domestic violence and abuse courts remained outstanding.’
Essentially, whilst 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.