Chief Constable of Cleveland Police v Barry Jemmett

This case is about domestic violence protection orders (“DVPOs”), which magistrates’ courts make on the application of the police, pursuant to s.28 of the Crime and Security Act 2010. Decisions about DVPOs involve an identified person “for whose protection the DVPO would be made” (s.28(4)(b)(i)), who I will call “the Protected Person”. This case is about the legal relevance of a magistrates’ court’s conclusion that the Protected Person “does not want”, and “would not take advantage of”, the DVPO.

The case comes before me as an appeal by way of case stated, pursuant to s.111 of the Magistrates’ Courts Act 1980. Under appeal is the decision of DJ Cousins (“the Judge”) at Teesside Magistrates’ Court on 25 May 2022, dismissing the application by Cleveland Police (“the Police”) for a DVPO. The Judge’s conclusions were that the Protected Person did not “want” the DVPO and “would not take advantage of” it. But the Judge decided to “state a case for the opinion of the High Court on the question[s] of law or jurisdiction involved” in her decision (s.111(1) of the 1980 Act), rightly recognising the importance of those questions and that – depending on the answers – her decision may have been wrong in law.

As to “does not want it”, the Judge has explained in the Stated Case that she saw this as one of those cases about “whether a protective order should be made where the beneficiary of that order does not want it”. She found that the Protected Person had “made no allegations of offending” and had told the Police she was “not willing to support a prosecution”. The Judge “considered that” the Protected Person “did not want the protection of the order”. This was a factual evaluation. As to “would not take advantage of” it, the Judge said – in brief oral reasons at the hearing – that the DVPO was “not necessary as” the Protected Person “won’t access help or take it”. The Judge has explained in the Stated Case that her view was: that the Protected Person “would not take advantage” of the “breathing space”; that she “would not” access support services; and that she “would not” facilitate the Respondent’s compliance. This was a predictive evaluation.

The Respondent, against whom the DVPO would have been issued, has not participated in this appeal. He was not required to do so. I am not being asked to remit this case to the magistrates. Ms Checa-Dover, who has made helpful written and oral submissions on behalf of the Police, does not press for a quashing order. If the Judge had made a DVPO it would necessarily have expired within 14-28 days (s.28(10)), in June 2022. When the Judge acceded to the Police’s application to state a case, and then finalised the Stated Case (13.7.22), it was known and understood that the utility of this appeal would lie in having the High Court give its “opinion on the questions of law arising” (s.111(1) of the 1980 Act). That is what I will do.

I am conscious that this is a “one-sided case” (cf. Leeds City Council v Persons Unknown [2023] EWHC 1504 (Admin) [2024] RTR 2 §5). I have not heard contested argument, and I did not adjourn to invite an ‘amicus’. I have been reliant on Counsel and the Court’s resources. I am also conscious that DVPOs come before magistrates’ courts urgently. In the present case, the Judge accessed case-law – or commentary describing that case-law – on restraining orders. I have had the advantage of far more comprehensive sources and submissions, and far more time to reflect, than did the Judge. Ms Checa-Dover told me that the Police had given careful consideration to whether any anonymity and reporting restriction was justified as necessary and concluded – as I accept – that, in all the circumstances it was not.

When I give statutory references these are to the 2010 Act unless I say otherwise. References to the Statutory Guidance are to the guidance issued pursuant to s.31, in December 2016; and updated in February 2020 (with identical paragraph numbers and, for present purposes, identical relevant text). I will speak of DVPOs as giving Protected Persons a “further” short-term safe period, in the “immediate aftermath” of violent domestic abuse or a latest incident of violent domestic abuse. The DVPO is “short-term” because it is 14-28 days. It is “further” because a Domestic Violence Protection Notice (“DVPN”) will already have been in place, for a very short time. I am using “immediate aftermath” in the same way as the Statutory Guidance (§10 below), albeit recognising that the initial and most immediate response is the DVPN. I acknowledge that, depending on the context, “survivor” and “complainant” could be better than “victim”: Equal Treatment Bench Book (April 2023 Revision) at pp.175 and 195.

This is from the Equal Treatment Bench Book, in discussing Gender, in the context of domestic violence and abuse (p.178):

The Protected Person must be an “associated person” (s.24(9)) – which includes a spouse, civil partner or cohabiting partner – of the person to whom the DVPO would be issued (the “Restrained Person”). Two statutory preconditions must be met, if a DVPO is to be made. The Judge called these “the two stage test”. The first statutory precondition is that the magistrates’ court must be “satisfied, on the balance of probabilities, that” the Restrained Person “has been violent towards, or has threatened violence towards” the Protected Person (s.28(2)). The Judge was satisfied that this was met. The second statutory precondition is that the magistrates’ court “thinks that making the DVPO is necessary to protect” the Protected Person “from violence or a threat of violence from” the Restrained Person (s.28(3)). The Judge was not satisfied that the DVPO could be “necessary” for the purposes of the second statutory precondition, if the Protected Person (a) “does not want” it and (b) “would not take advantage of” it.

A DVPO is a civil order. It is preceded by a DVPN issued by the police (s.24), who must then make an application to the magistrates’ court for a DVPO (s.27(1)), heard within 48 hours (s.27(3)). The two statutory preconditions (§8 above) apply, both to the DVPN (s.24(2)) and to the DVPO (s.28(2)(3)). A DVPO applies for a stated period (s.28(11) between 14 and 28 days (s.28(10)). It prohibits the Restrained Person from molesting – in general or by specified acts – the Protected Person (s.28(6)(7)). The word “molesting” is explained in the Statutory Guidance (§5.2.8) as “disturbing, annoying or tormenting someone with persistent behaviour and to pester in a hostile way”, which “could also include using or threatening violence, intimidating and harassing”. If the Restrained Person lives in the same premises as the Protected Person, the DVPO may (s.28(8)): (a) prohibit the Restrained Person from evicting or excluding the Protected Person from the premises; (b) prohibit them from entering the premises; (c) require them to leave; and (d) prohibit them from coming within a specified distance of the premises. The Restrained Person can be arrested on reasonable grounds for believing that they are in breach of the DVPN (s.25(1)(b)) or DVPO (s.28(9)) and breaches are dealt with by the magistrates (ss.26, 29) as a civil contempt (Statutory Guidance §4.11) pursuant to s.63 of the 1980 Act.

Here is a description from the Statutory Guidance (§§1.2, 2.2 and 2.3):

I turn to the present case. The Stated Case sets out relevant background, as follows:

The Judge sets out these findings of fact, to which the Police mounts no challenge:

As the Judge explains:

The Judge has asked the High Court to answer these Questions (my answers are at §48 below):

I think this is the best place to start. In (Q2) the Judge asks about the applicability of, and the assistance derived from, the case law relating to criminal restraining orders. At the heart of her analysis (§13 above) were Brown and Herrington. These were the cases about – as the Judge put it – whether “a protective order should be made where the beneficiary of that order does not want it”. The Judge thought these cases did assist her, and that they were applicable. She has asked this Court whether that was right. I am using “the Brown Cases” to describe this line of case-law.

The Brown Cases started with R v Picken [2006] EWCA Crim 2194. Picken was later applied in Brown (§§11-12); and Picken and Brown were then applied in Herrington (§6). In all three cases, sentencing judges in criminal courts had imposed prison sentences for violent offences of domestic abuse against a cohabitee, to which the sentencing judge had added a restraining order preventing the defendant from any ongoing contact with the victim, during their prison sentence and then after release from prison. In all three cases, these restraining orders were held by the Court of Appeal to have been wrongly imposed. That was because they would prevent the continuation of a relationship against the victim’s expressed wishes.

In Picken, the sentencing judge (on 12.6.06) imposed a 2-year prison sentence on the defendant for violent offending (dating back to 4.2.06 and 7.2.06), making a 5 year restraining order preventing the defendant from making contact with the victim (“Miss W”). The judge was told, by the defendant’s advocate, that Miss W “had visited the [defendant] in prison shortly before his appearance for sentence and had told him that she was willing for him to move back into their home on his release”. The judge said (§17):

The importance of an enquiry – at the heart of Picken – finding out the views of the person who would be protected by the restraining order has been taken up in subsequent caselaw and commentary. This is from Blackstone’s Criminal Practice 2024, discussing sentencing and restraint orders (at §E21.32):

In Brown, the sentencing judge (on 13.9.11) imposed 21 months custody on the defendant for violent offending (dating back to 26.5.11), making a 5 year restraining order preventing the defendant from making contact with the victim (“the partner”). The Judge was told, by the prosecution, that the partner “did not wish a restraining order to be in place because she wanted the relationship to continue” (§10). Subsequently, she had “visited the [defendant] in prison on a number of occasions before she was told that was not acceptable”, and she had supported an unsuccessful application to the judge to discharge the order (2.3.12) (§§2, 10). Citing the passage which I have quoted from Picken, the Court of Appeal held that the restraining order “should not have been imposed” (§12). In the passage which the Judge quoted, and which I will repeat, the Court of Appeal in Brown said this (at §12):

In Herrington, the sentencing judge (on 1.3.17) imposed 12 months custody on the defendant for violent offending (dating back to 6.2.17), making a 3 year restraining order preventing the defendant from making contact with the victim (“Ms Jones”). The judge was told, by the prosecution, that Ms Jones “had refused to make a statement and was indeed in court supporting the [defendant]” (§5). The Court of Appeal quashed the restraining order. It quoted (at §6) the above passage from Brown. It then continued (at §§7-8):

For the purposes of analysing the issues in the present case, it is in my judgment important to identify these as among the key features of the Brown Cases. They contrast with the Kerr case, of which the Judge was unaware and to which I will come (§41 below).

The idea of “expressed wishes” of a victim of domestic abuse – including violent incidents of domestic abuse – calls for very great caution on the part of any court. There is a recognised link between violent incidents of domestic abuse and other domestic abuse. Courts do not think or speak in terms of “domestic violence”, but about “domestic abuse” In the context of DVPOs, Parliament has focused on “domestic violence”, which I am describing as violent incidents of domestic abuse. The concept of “domestic abuse” is described in the Sentencing Guideline (at §1) as “a range of violent and/or controlling or coercive behaviour”. Controlling behaviour (§5) is “a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour”. Coercive behaviour (§6) is “an act or pattern of acts of assault, threats, humiliation (whether public or private) and intimidation or other abuse that is used to harm, punish, or frighten the victim.”

This is from the Sentencing Guideline at §12:

So, among the “various reasons” why – whenever imposing a sentence for an offence – the criminal court will determine the domestic context by offence seriousness and “not by any expressed wishes of the victim” (§12) are reasons relating to the wider “risk”, which may not be visible to a sentencing court. There is the risk that “a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender”. There is the “risk” that “such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim”. By contrast, restraining orders as in the Brown Cases are not sentences imposed on behalf of the wider public; they are orders made by a criminal court to protect the victim (Sentencing Guideline §§19-24). But a key point is that there are serious concerns about a victim’s “expressed wishes” and even a criminal sentencing court may not have good visibility on what does or may lie behind these. There is also a linked point of wider legal policy, to which I will return (§39 below).

Domestic abuse can, in principle, trigger a positive obligation of active state involvement in the protection of the victim: see Volodina v Russia (App.No.41261/17, ECtHR 9.7.19) at §§71-76. There can be an obligation to take reasonable measures to avert a real and immediate risk of ill-treatment of which the authorities knew or ought to have known (Volodina §§76(b), 91). These obligations will apply, as domestic statutory duties, under the Human Rights Act 1998. The public authorities of the state, including the courts, may therefore need to “strive for an outcome which takes account of and achieves a reasonable accommodation” between “competing” Article 3 and Article 8 rights, even in the context of a competent individual’s “stated wishes and feelings”: cf. Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 §§36-37.

The Judge rightly saw, in the Brown Cases – Picken, Brown and Herrington – a point about a “protective order where the beneficiary does not want it”. She saw protective orders, overturned as wrong in principle by the Court of Appeal in the Brown Cases, and she relied on those cases in declining to make one in the present case. She has asked this Court – in (Q2) – to address whether those authorities were applicable or of assistance, or whether there is a material difference between the restraining orders in those cases and DVPOs. The answer, in my judgment, is this. The Brown Cases were not applicable. They were not of assistance. Except, that is, by illustrating material differences with DVPOs and because of the possibility of a principled reconciliation (§43 below). Here is why the Brown Cases are inapplicable and do not assist, and why the position in relation to DVPOs is materially different.

First, DVPOs are special civil measures which, by nature and design, are for immediacy. Where the DVPN has been issued, the application for a DVPO must come before the magistrates’ court within 48 hours. These are responsive civil measures, which can be made only if a court is satisfied on the balance of probabilities that the Restrained Person has been violent towards, or has threatened violence towards, the Protected Person as an associated person. By design, the DVPN and DVPO are able to address the “immediate aftermath” of a violent incident of domestic abuse. That is described in the Statutory Guidance at §1.2 (see §10 above).

Secondly, DVPOs are special civil measures which, by design, are short-term restrictions. They are, in and of their nature, a further short-term intervention after the initial DVPN. The DVPN never stands alone. It is necessarily followed by the application, heard within 48 hours, for the DVPO. There is a statutory maximum duration of 28 days. The way in which a DVPO can constitute an ongoing interference with a relationship is temporally restricted. They are designed to achieve things for the Protected Person and their interests, achievable by protection during a short-term intervention.

Thirdly, this necessarily short-term intervention – in the immediate aftermath of a violent incident or latest violent incident of domestic abuse – is, by design, a protection of the victim where one distinct protective value is about the court securing a period of protected space for decision-making. This is described in the Statutory Guidance at §2.3 as “protected space to explore the options available to them and make informed decisions regarding their safety” (§10 above). This allows the victim a degree of breathing space “to consider their options with the help of a support agency” (Statutory Guidance §1.3). The Government 2010 Strategy: Together We Can End Violence Against Women and Girls had said that the new DVPO would create protection “while further support is offered to the victim to decide on next steps” (p.76). The Consultation Paper: Together We Can End Violence Against Women and Girls (March 2009) was the work which lay behind the new DVPO (see the Explanatory Notes to the 2010 Act at §6).

Fourthly, this value of a DVPO to provide a protected period of protected space for decision-making involves no incompatibility with the idea (see §21(4) above) of protecting and respecting the autonomous decision-making of the victim regarding an ongoing relationship (with which – were the relationship to resume – the DVPO would have involved a short-term interruption). On the contrary, there is a clear consonance (see §43 below) between insisting on a protective, safe period for autonomous decision-making and promoting and respecting autonomous decision-making. This is still all about (§21(4) above) promoting and respecting autonomy. It is really about ensuring a passage of time (§21(2) above) with a safe space. In family law cases involving the inherent jurisdiction, there is a not dissimilar idea about an intervention to “facilitate” a “process of unencumbered decision-making”, which is “facilitative, rather than dictatorial” for “the individual’s autonomy of decision-making”; and “in a manner which enhances, rather than breaches, their EHCR Article 8 rights”: see DL v A Local Authority [2012] EWCA Civ 253 at §§33, 67. Whatever the victim’s decision, the virtue and purpose is about it being arrived at after a protected safe period.

Fifthly, there is a second and freestanding protective value: simply to protect the victim from harm for a short period. The short-term intervention – in the immediate aftermath of a violent incident or the latest violent incident of domestic abuse – can simply be “providing immediate emergency protection for the victim” (Statutory Guidance §2.3: §10 above). That is distinct and freestanding from “protected space to explore the options available to them and make informed decisions regarding their safety”. The Strategy: Together We Can had said that the new DVPO would create “protection for the victim in the immediate aftermath of a domestic violence incident” (p.75). The Statutory Guidance (§5.1.3) speaks of DVPNs and DVPOs as interventions ensuring “the decision-making of the victim” is free from suspicion of coercive and controlling behaviour; but it also speaks of this as intervention which “may simply be necessary to protect the victim (§37 below). The important word here is “simply”. This fits with the statute. It is, in and of itself, protection from violence or a threat of violence from the Restrained Person (s.28(3)). That, after all, is the second statutory precondition. It can be justified as necessary. In its own right. Without more.

Sixthly, Parliament has made a statutory provision about the views and wishes of the Protected Person (see §§34-38 below), which makes clear that a DVPO (like a DVPN) can be issued even where the Protected Person’s stated opinion expresses disagreement with the making of the order. This is no surprise. It is also no accident. The Consultation Paper: Together We Can (§29 above) had described “Go” orders under Austrian, Swiss, German and Polish legislation which allow police to exclude perpetrators of domestic violence from the home, where the legislation “differs between these countries in terms of the length of the exclusion order, and the extent to which the state allows victims to influence the interventions that occur” (p.19). The Austrian 10 day exclusion order involved a 10 day stage controlled by the police whose imposition “the victim cannot influence”. These measures were considered (see Consultation Paper: Together We Can p.19) in an ACPO Review for the Home Secretary, Tacking Perpetrators of Violence Against Women and Girls (September 2009) which recommended 14 day DVPOs issued by the police (pp.12, 48-53). It is unsurprising to find express statutory provisions relating to (a) whether the view and wishes of the Protected Person should be considered and (b) whether the Protected Person’s express disagreement precludes a DVPO being made. The answer is (a) yes and (b) no: see §§34-38 below.

Seventhly, there is a wider point of legal policy: the court’s decision to make or decline to make this species of protection order is not a function of – and should in principle not be attributed to – the position taken by a victim. See §39 below.

I have said that, in the context of DVPOs, Parliament has made a statutory provision about the stated views and wishes of the Protected Person. The position is as follows: (1) First, Parliament has required at the DVPN stage that the police must take reasonable steps to discover the opinion of the Protected Person as to the issuing of the DVPN (s.24(4) and (3)(b)). (2) Secondly, Parliament has required at the DVPN stage that the authorising police officer must consider any opinion of the Protected Person (s.24(3)(b)). (3) Thirdly, Parliament has expressly provided that the police’s authorising officer “may issue a DVPN in circumstances where the [Protected Person] does not consent to the issuing of the DVPN” (s.24(5)). (4) Fourthly, Parliament has required at the DVPO stage that the magistrates’ court must consider “any opinion of which the court is made aware” of the Protected Person (s.28(4)(b)(i)). (5) Fifthly, Parliament has expressly provided that the magistrates’ court “may issue a DVPO in circumstances where the [Protected Person] does not consent to the issuing of the DVPO” (s.28(5)).

In deciding whether or not to issue a DVPN, the police must adopt a legally correct appreciation of its statutory function. That requires that points (1), (2) and (3) above are understood. In deciding whether to make or decline to make a DVPO, the magistrates’ court must adopt a legally correct appreciation of its statutory function. That requires that points (4) and (5) above are understood. This answers much of the Judge’s (Q1): see §48 below.

It follows from s.28(5), so far as the Protected Person’s “opinion” is concerned, that Parliament has provided that the making by the magistrates’ court of a DVPO is not precluded: (a) by the absence of a positive statement of consent (agreement); but nor (b) by the presence of a positive statement of non-consent (disagreement). Both the absence of express agreement and the presence of express disagreement fall squarely within the wording, and the discernible purpose, of s.28(4)(b)(i) and (5). Here are those provisions:

Here is what is said in the Statutory Guidance (§5.1.3):

There are several good reasons for a magistrates’ court deciding that it is “necessary” to make a DVPO to protect the Protected Person from violence or a threat of violence (s.28(3)) from the person who has been violent or threatened violence (s.28(2)), even if the “opinion” of the Protected Person (s.28(4)(b)(i)) is to disagree with the making of the order. Suppose the Protected Person says: “I do not agree with the making of an order” and “this is just an unwanted interruption” in a relationship which “I wish to continue”, unrestrained by any court. As Parliament recognised, the magistrates’ court could – the word is “may” and not “shall” – make the DVPO. (1) It is a short-term intervention, in the immediate aftermath of a violent incident or latest violent incident of domestic abuse. (2) There are reasons, or risks of reasons – including those invisible to the court and not capable or appropriate for immediate enquiry – about the Protected Person’s disagreement and whether it is a choice “freely” made. (3) A different choice could emerge from a protected period of safety to promote autonomous decision-making. (4) Even if the choice remains the same, the value of the protected period of safety for autonomous decision-making is that the choice has been made under that protection and after that period. (5) There is, in any event, a freestanding value in securing safety, even if only for a further short-period, consistently with the second statutory precondition.

I have mentioned (§§24 and 33 above) that there is a wider point of legal policy. It is that the court’s DVPO decision is not a function of – and should in principle not be attributed to – the expressed views of the victim. In the context of sentencing generally, the Sentencing Guideline speaks (§23 above) of risks to victims in terms of what “is generally believed” about the court’s decisions. It speaks of the “risk” that “threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim”. The point about what “is generally believed” is that the signals which courts give, about the basis of their orders – including protective orders – really matter. This is a ‘big picture’ point. In the express design of the statutory scheme for DVPNs and DVPOs, Parliament has recognised that it would be inappropriate for victims to be “responsible for” the making, or not making, of the order which protects them in the immediate aftermath of a violent incident – or latest violent incident – of domestic abuse. The domestic abuse may include controlling behaviour or coercive behaviour. There may be visibility gaps. There is a policy picture, beyond the individual case. If victims were to bear the responsibility, or it perceived as bearing the responsibility, that is a burden. It comes at an especially inappropriate time, in the immediate aftermath of a violent incident or latest violent incident of domestic abuse. It can introduce additional actual, potential or perceived pressure; or leverage; or fear; or recrimination; or the risks of these things. All of this, and the idea that the court clearly ‘owns’ the decision, is recognisable in sentencing, as has been seen: Sentencing Guideline §12: §23 above. The response is not ‘down to the victim’. This is an idea which also belongs in relation to urgent protective orders, which may remove a perpetrator of a violent incident or incidents of domestic abuse from the home and impose significant constraints. That is what Parliament was recognising.

The design of the DVPO statutory scheme involves the victim being listened to, but the DVPN being issued and the DVPO made even where the victim’s expressed opinion involves disagreement with the intervention. This is itself protective, in broader legal policy terms. The responsibility remains on the police and the magistrates’ court, and it cannot be “generally believed” that the decisions are the responsibility of, a function of, or attributable to, the Protected Person. The police and magistrates’ court will take responsibility for assessing for themselves whether the intervention is necessary to protect the victim, even if the victim says they “do not need” it – or “will not take advantage of” it – and this is clear to everyone, including the Restrained Person.

In Kerr v Surrey Chief Constable [2017] EWHC 2936 (Admin) there was a violent incident of domestic abuse (17.4.17), in whose immediate aftermath the police issued a DVPN. When, within the prescribed 48 hours, the case came before the magistrates (19.4.17) the victim – the partner – had “sent an email via the police which stated that she did not wish for an order to be made” (§16). This Court (Deputy High Court Judge Andrew Thomas QC) referred to the statutory purpose in terms of “immediate emergency protection to victims of domestic abuse” and “breathing space for the victims to make informed decisions” (§13). He drew attention to s.24(5) (§14). He saw nothing arguably erroneous about the DVPO, which he described as “entirely in accordance with the statutory purpose of such Orders” (§26). Referring to the partner’s email, he said the magistrates were (at §24):

I acknowledge that Kerr is a permission-stage decision. It does not contain an express statement that it establishes a principle or extends the law (Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at §6.1). But Ms Checa-Dover was right to include Kerr in her authorities’ bundle in the present case. Looking purposively, Kerr does not “only decide that the application is arguable” (Practice Direction at §6.2). It decided the legal position as being clear, beyond argument. It was also an analysis of the statutory scheme and purpose. Kerr is cited in Archbold Magistrates’ Courts Criminal Practice 2024 (at §22-258), as authoritative assistance in identifying the purpose of the statutory scheme. Kerr would have assisted the Judge, had it been cited to her. Nobody is treating what DHCJ Thomas QC said in Kerr as binding. But if similar observations had been made in a journal or textbook commentary, or if the question he addressed had been considered there, that could have been cited. It is important not to take an overly technical approach, and not to exclude being able to read and think about sources which can help.

For the reasons which I have given, it is possible to see a principled reconciliation between the legal policy which lies behind the Brown Cases and the legal policy applicable to the distinct protection of DVPOs. The Brown Cases are about courts which act after a period of time during which the victim is seen “freely” to have come to an autonomous decision about their ongoing private and family life. The position with DVPOs – and s.28(5) – is about the courts securing a period of time during which the victim is best able to now come to an autonomous decision about their ongoing private and family life. There is no conflict of legal policy, principle or philosophy. The magistrates’ court has a special power. It can serve to promote that a victim of recent violent incidents of domestic abuse can arrive at their best autonomous decision-making. It allows a short-period of safety, which is a relevant protection and a limited intrusion. After that, the DVPO falls away.

I need now to focus in on the idea of the victim who “would not take advantage of” the DVPO. This appears within the Judge’s (Q1), where it is expressed as “lack of intention to engage with other agencies”. The Judge’s analysis was predictive evaluation, about three things which the Judge considered that the Protected Person “would not” do. The Judge said:

In my judgment, there are these reasons which militate against relying on a predictive evaluation of this kind, about what the Protected Person “would” or “would not” do if the DVPO were made.

For these reasons it is in my judgment an error of law, in deciding whether the order is necessary, for the court to rely on a predictive assessment of the extent to which the Protected Person will engage with relevant agencies. That is the answer to the remaining aspect of the Judge’s (Q1(a)).

In my judgment, the legally correct position is as follows. The second statutory precondition is whether the court thinks the making of a DVPO is necessary to protect the Protected Person from violence or a threat of violence by the Restrained Person (s.28(3)). In considering the second statutory precondition, and in approaching the power to make a DVPO (s.28(1)), the following key points should inform the magistrates’ court’s approach to the ideas that the Protected Person “does not want” or “would not take advantage of” the DVPO:

In the light of my analysis, here are the Judge’s Questions again, with my answers:

In these circumstances, and for these reasons, I will allow the appeal. No further order is necessary or appropriate.