This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Domestic violence criminal offences and compensation

This content applies to England

Where a person takes action under the criminal law, the police will prosecute the perpetrator of the violence for committing a particular criminal offence. Criminal injuries compensation scheme.

Offences relating to domestic violence

Offences relating to domestic violence include assault or grievous bodily harm under the Offences Against the Person Act 1861 and the Criminal Justice Act 1988, or one of the specific harassment offences under the Protection from Harassment Act 1997.

In order for the police to prosecute, there needs to be a strong case based on detailed evidence, and the person who has made the complaint may have to face giving evidence in court.

Advisers should also be aware of recommended police procedures in responding to cases of domestic violence. If properly followed, this can provide crucial support and important evidence in any subsequent homelessness application.

Details of offences

In any relationship situation (married or unmarried, heterosexual, lesbian or gay) criminal law may be used to bring proceedings against a violent partner for offences including:[1]

  • murder or manslaughter (actual or attempted)
  • rape or indecent assault[2]
  • unlawful wounding
  • grievous bodily harm
  • assault occasioning actual bodily harm
  • aggravated assault
  • common assault
  • intimidating a witness[3]
  • harming or threatening to harm a witness[4]
  • harassment and putting a person in fear of violence
  • controlling or coercive behaviour[5]

These are all specific criminal offences, and it will be up to the police to decide under which offence the perpetrator should be prosecuted.

Case law shows that the courts may be willing to apply these offences to a wide variety of situations. In one case,[6] grievous bodily harm was found to extend to severe depression caused by a person, with whom a woman had had a relationship, 'stalking' her. This involved appearances at her home and workplace, writing threatening letters and telephoning her. In another case, actual bodily harm was found to be caused by a series of silent and obscene telephone calls.[7]

Domestic Violence, Crime and Victims Act 2004

The Domestic Violence, Crime and Victims Act 2004 introduced the following changes to the law on domestic violence:

  • breach of non-molestation order obtained under the Family Law Act 1996 is a criminal offence[8]
  • a new offence of causing or allowing the death of, or the suffering of serious physical harm to a child or vulnerable adult - all members of a household aged 16 or over may be liable for the offence[9]

Criminal offences under Protection from Harassment Act 1997

There are two criminal offences under the Protection from Harassment Act 1997 that may be useful in domestic violence situations:

  • criminal harassment may occur where a person acts (on at least two occasions) in such a way as to cause harassment of another person and the perpetrator knows or ought to know that the behaviour amounts to harassment[10]
  • the offence of putting a person in fear of violence may occur where a person behaves in such a way as to cause another person to fear (on at least two occasions) that violence will be used against her/him and the perpetrator knows or ought to know that the behaviour will cause fear of violence on each of those occasions[11]

Examples of harassment

There is no definition of harassment in the Act, although it includes alarming or causing the person distress[12] and can include speech.[13] Examples of the types of behaviour regarded as harassment include persistent, abusive telephoning; abuse in public; threats against the victim and threats to cause damage. Guidance concerning the definition of criminal harassment is also given by the way in which the courts have dealt with offences under section 5(1) of the Public Order Act 1986 and from the common law definition of harassment that is often described as behaviour that 'calls for the intervention of the courts'.

Protection from future harassment – restraining orders

The Act's criminal provisions only deal with criminal offences that have been committed, and provide no protection from future harassment. On conviction for either offence, however, the court may make a restraining order to prevent future harassment without the need for a further hearing in the civil courts.[14] Furthermore, the court is to have the power to make a restraining order even when they find a defendant not guilty of an offence, as long as the court considers that it is necessary to protect a person from harassment.[15] The offence being dealt with does not have to be an offence of violence or harassment. Furthermore, such restraining orders are to be considered on the easier test of 'balance of probability' that applies in civil courts, rather than the test of 'beyond reasonable doubt' that normally applies in criminal courts. Hearsay evidence will be admissible subject to sworn statements, as they are in civil actions. Also, evidence that is not admissible in criminal proceedings, such as information about the nature of the relationship generally, as opposed to behaviour related directly to the offence in question, will be able to be taken into account.

Breach of restraining order

The maximum prison sentence for breach of a restraining order is five years. Case law has shown that the courts view breach of a restraining order very seriously. One man was sentenced to 15 months imprisonment for sending two letters to his ex-wife and for speaking to her in the street when they met accidentally, contrary to a restraining order forbidding all contact. Another received 11 months for ringing his ex-wife's doorbell at night and disappearing. He then subsequently wrote to her while on remand indicating he had been watching her, again despite an order forbidding all contact.[16]

Penalties

Criminal harassment is punishable by a maximum six-month prison sentence and/or a fine not exceeding level 5.[17] Aggravated harassment carries a maximum five-year prison sentence and/or an unlimited fine.

Limitations of criminal law in domestic violence cases

A person should not be discouraged from taking action against a perpetrator of domestic violence. However, it is important to be aware that there can be difficulties:

  • if the perpetrator pleads not guilty, the victim may have to face the trauma of giving evidence in court. A person called as a witness in this way will not have the support of a solicitor to explain procedures and court practices, thus making the situation even more intimidating. If there are no other witnesses to the violence, it may be difficult to prove the offence. There is a higher standard of proof in criminal courts than in civil courts, as it has to be proved beyond all reasonable doubt that an offence has been committed. In the civil courts, the test is the balance of probabilities
  • attitudes within the police vary from area to area, but it can often be difficult to persuade the police to prosecute in domestic cases
  • if the perpetrator is convicted but not committed to prison, the criminal courts have no real power to protect the injured party, other than the limited powers to bind over to keep the peace or to attach conditions to a probation order. Criminal courts cannot grant injunctions, so further civil action may be required, eg to obtain an injunction
  • if the police decide not to prosecute, a private prosecution could be pursued, although legal aid is not available to do this

The Criminal Injuries Compensation Scheme

The Criminal Injuries Compensation Authority (CICA) awards compensation to people who have suffered injury as a result of a violent crime. The principle behind the scheme is that although money will not compensate fully a person who has suffered from criminal violence, it is a way of society recognising and acknowledging that a wrong has been done.

How the scheme works

The current scheme came into effect in November 2008. Compensation is calculated on a pre-designated tariff system based on the nature and extent of any injuries, physical or psychological. Awards can be made to victims of sexual offences and abuse and in cases where the assault resulted in death. In addition, compensation can be granted for loss of earnings or earning capacity, but only if the victim has been absent from work for more than 28 weeks. Claims can be made for up to three separate categories of injury.

A further award can be made for 'special expenses'. These can include loss of or damage to property, costs associated with NHS treatment, costs of private treatment (where deemed reasonable), and special equipment and adaptations to accommodation required as a result of injuries sustained. The cost of care can be awarded where it is not available from other publicly funded agencies (this is often the largest part of the claim in the case of serious injury). Where victims are unable to manage their own affairs, the costs of the Court of Protection are recoverable.

The maximum amount of compensation for all aspects of a claim is £500,000 (this limit has remained the same since 1996.)

Applying for compensation

To qualify a victim must be able to show that they have suffered a personal injury as a result of a violent crime, but the perpetrator does not necessarily have to have been convicted of, or even charged for, the crime. Applications must be sent to CICA as soon as possible after the violent event. Certain criteria must be met for the victim to be eligible to apply for compensation:[18]

  • the victim must have been sustained the injury within the last two years (unless there is a good reason why the victim could not have applied earlier).
  • the incident must have taken place in England, Scotland, or Wales (if the victim was injured outside of the UK s/he may be able to claim compensation in the country s/he was in at the time).
  • the victim must have been injured seriously enough to qualify at least for the minimum award (£1,000).

Awards may be refused if:[19]

  • the victim did not report the crime to the police immediately (in some instances, where appropriate, the crime can have been reported to another authority)
  • the victim fails to cooperate with the police or CICA

For more details, see the Criminal Injuries Compensation Scheme Guide.

Compliance with the correct procedure and thorough preparation of the documentation pertaining to the claim is crucial for a successful claim. As well as the application form, CICA must receive full and adequate evidence of both the eligibility of the claim and the amount of the award claimed. This might include verification of police information and medical reports. If the initial claim is refused, an appeal can be made. This is assessed by an independent panel sitting within the Tribunal Service. Again, compliance with procedures and thorough preparation of evidence is essential. Many cases are ultimately successful as a consequence of appealing.

[1] Offences Against the Person Act 1861 and the Criminal Justice Act 1988.

[2] s.1(1) Sexual Offences Act 1956; offence for a man to rape a woman or another man; s.14 Sexual Offences Act 1956: offence for a person to make an indecent assault on a woman; s.15 Sexual Offences Act 1956: offence for a person to make an indecent assault on a man.

[3] s.51 Criminal Justice and Public Order Act 1994.

[4] s.51 Criminal Justice and Public Order Act 1994.

[5] s.76 Serious Crime Act 2015; see also 'Controlling or Coercive Behaviour in an Intimate or Family Relationship', Statutory Guidance Framework, Home Office, December 2015.

[6] R v Burstow (1996) The Times 09/07/1996 CA.

[7] R v Ireland (1996) The Times 22/05/1996 CA.

[8] s.1 Domestic Violence, Crime and Victims Act 2004.

[9] s.5 Domestic Violence, Crime and Victims Act 2004, as amended by s.1 Domestic Violence, Crime and Victims (Amendment) Act 2012; The Domestic Violence, Crime and Victims (Amendment) Act 2012 (Commencement) Order 2012 SI 2012/1431.

[10] s.2 Protection from Harassment Act 1997.

[11] s.4 Protection from Harassment Act 1997.

[12] s.7(2) Protection from Harassment Act 1997.

[13] s.7(4) Protection from Harassment Act 1997.

[14] s.5(1) Protection from Harassment Act 1997.

[15] s.5A Protection from Harassment Act 1997.

[16] R v Liddle, R v Hayes [1999] 3 All ER 816.

[17] Currently a maximum of £5,000.

[18] Criminal Injuries Compensation Scheme 2008 - A guide.

[19] Criminal Injuries Compensation Scheme 2008 - A guide.

Back to top