Domestic Abuse Protection Orders (‘DAPO’)

17th January 2022 Business Crime

This order is similar to Domestic Violence Protection Orders (‘DVPO’) which had been used for some time. Part 3 of the Domestic Abuse Act 2021 saw its introduction.

Accessibility

DAPOs per s.28 of The Act are much more readily accessible, the police can continue to make applications for such an order, however s.28(2) makes applications available to the person for who the order is sought, and relevant third party which has the leave of court to do so. This will allow for DAPOS to be applied for by parties in both Family and Criminal proceedings.

Burden of proof

S.32(2) only requires that condition A be satisfied on the balance of probabilities, while condition B remains that the order is necessary and proportionate. Further to this s.32(4)(b) states it does not matter whether the abuse took place before or after the coming into force of this section. This burden of proof is due to the civil nature of the order. However, arguably most draconian of the changes is that penalties for breach are greatly increased.

S.39 (4) identified the sentences available for a breach as imprisonment for a term not exceeding 12 months and/or a fine for a breach on summary conviction, and for conviction on indictment, imprisonment for a term not exceeding’s 5 years and/or a fine. Any breach of a DAPO is no longer a civil breach but a criminal offence, this is simply too high when in reality there is no requirement to be sure that the person who has the order against them has committed or threatened any abuse, and in any event, it is difficult to prove on the balance of probabilities this did not happen.

Provisions that can be imposed

S.35 and 36 of The Act provide a non-limited outline of what provisions can be imposed by a DAPO. It allows for any such requirement that the court considers necessary to protect the person who needs protecting, these requirements include prohibitions and restrictions. 

S.35(6) provides that electronic monitoring can be used in order to ensure the persons compliance with other requirements. The implementation of electronic monitoring could be positive and negative. It goes without saying being tracked is by no means something that is desirable, however it could work to ensure that should a client be given a DAPO they avoid breaching this which would see them facing large penalties as previously discussed.

However, it works the other way as should a client fail to understand this and breach their order it is almost certain they will be caught. Further to this tracking does not assist in situations where contact is initiated by the Complainant, it merely shows the movement of the Defendant. While it also fails to solve any problems that may arise should the Complainant and Defendant innocently meet in an area that the Defendant is not excluded from.

Details of orders

S.38 of The Act outlines the duration and geographical applications of orders. It is important to note that a DAPO takes effect on the day that it is made, while s.38(3) states that an order can have effect, for a specified period, until the occurrence of a specified event, or until further order. The inclusion of until further notice means that should an order be imposed there is potential for it to carry on for an extremely long period of time. It is important that the defence teams are prepared to make representation to the court to ensure that the impracticalities of an order are understood before any such order is made.

Varying an order

Whilst the changes being made to such orders are largely negative from a defence perspective one positive comes from s.44 and 45 of The Act which allows for the variation and discharge of orders. While this does not balance out the intrusive measures that have been implemented it does depart from the DVPO position which offered no remedy to an order once it was given. An application for this can be made by the person for whose protection the order was made, the person against whom the order was made, under s.28, the person who applied for the order, the chief office of the force where the person resides. S.44(9)-(13) states a court may include additional requirements or extend the period for which the order has effect, remove any requirements, or make any such requirement less onerous and discharge the order if it is satisfied it is no longer necessary for protection purposes.

 Implementation pre and post-trial

A DAPO will conventionally be implemented pre- trial, it can however be implemented at any point during proceedings and will often be subject to a time limit. Its intended purpose is to protect those who require it from further abuse while awaiting trial. Following a conviction, it is at the court’s discretion as to whether the DAPO is discharged and a restraint order is implemented or not.

 Implications for practitioners

  • The burden of proof for a DAPO is the balance of probabilities. However, the penalties have increased to up to 5 years imprisonment and/or a fine for a breach of such an order;
  • The court can impose any such provision they believe necessary to protect the alleged victim;
  • Electronic monitoring can now be a requirement;
  • Orders can be made until further notice;
  • A positive change is that an order may now be varied. Should evidence arise that supports the defence they are able to challenge the need for an order to continue.
  • Due to the civil burden of proof, it is important to ensure everything is considered by the court when making an order.

If you are subject to such an order and require representation contact our specialist lawyers through 0345 241 5305​​​​or enquiries@jmw.co.uk.

This blog was co-authored by Luke Sullivan.

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Mike Rainford is a Partner located in Manchester in our Business Crime & Regulation department

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