Scottish Government

ANNEX B: BRIEF OVERVIEW OF LITERATURE RELATING TO DOMESTIC ABUSE COURTS

This annex provides a brief outline of some of the issues arising from the literature relating to the development of a specialist court approach to domestic abuse.

THE NEED FOR A SPECIALIST COURT APPROACH TO DOMESTIC ABUSE

There has been an increasing emphasis in the UK in recent years upon the development of specialist court responses to domestic abuse ⁶³ following similar developments in other jurisdictions. The rationale for the development of specialist court approaches ⁶⁴ has been based upon the increasing recognition of domestic abuse, and problems with the following:

• Lack of understanding amongst some practitioners in the criminal justice process of the complex nature of domestic abuse, the impact of this upon the victim's role and the implications for the criminal justice process ( e.g. Bennett, Goodman and Dutton, 1999; Fritzler and Simon, 2000; Mazur and Aldrich, 2003; Standing Together, 2006).
• Slowness in dealing with domestic abuse through traditional courts, with the legal system struggling to process cases efficiently and appropriately ( e.g. Mazur and Aldrich, 2003; Shaffer, 2004; Thompson, 2004).
• Issues for victims of domestic abuse ⁶⁵ in the court process, difficulties of participation and lack of support ( e.g. Hester et al 2003; Mazur and Aldrich, 2003).
• Lack of severity in sentencing, the nature of the charges and concerns about the lack of "seriousness" with which domestic abuse has been viewed in the criminal justice system ( e.g. Cook et al, 2004; Fritzler and Simon, 2000; Gilchrist and Blissett, 2002; Paradine and Wilkinson, 2003; Thompson, 2004; Tsai, 2000).
• Involvement of a range of agencies, but fragmentation of the response to domestic abuse and a lack of co-ordination of provision ( e.g. Shaffer, 2004; Thompson, 2004).
• Difficulties in prosecuting domestic abuse, along with high attrition and withdrawal rates (Standing Together, 2006).
• Lack of impact of traditional courts upon reducing domestic abuse and preventing further victimisation ( e.g. Tsai, 2000).

These factors have been shown to affect both victims' experiences and the outcomes of the legal process ( e.g. attrition rates and convictions).

There has been a growing recognition of all of these issues, alongside an increased awareness of the seriousness of domestic abuse, and an increased focus on victims. Alongside this, there has been some recognition that the nature of domestic abuse requires additional advice and support, specialised services and court processes which are sensitive to the issues. This has led to the establishment, in a number of jurisdictions, of specialist domestic abuse courts, in order to protect those who experience this from further harm, and to enable them to exercise their rights more effectively without compromising the justice process.

THE NATURE OF DOMESTIC ABUSE COURTS

There are now many examples of different types of specialist approaches to the domestic abuse court process, and, as the number has increased, considerable material has developed about the nature of the provision and the outcomes.

The purpose and goals of domestic abuse courts

A number of goals were identified as emerging frequently for specialist court approaches to domestic abuse. These include to:

• Improve the quality and effectiveness of the legal system's response to domestic abuse and the effectiveness of the agencies involved, demonstrating the criminality and seriousness of domestic abuse.
• Provide a quick and consistent resolution.
• Develop a more co-ordinated response.
• Improve case management.
• Enhance the safety and protection of victims and children.
• Engage with victims and enhance information and support to them.
• Encourage reporting of domestic abuse.
• Increase the percentage of offenders arrested, charged and prosecuted.
• Reduce the attrition rate.
• Hold perpetrators accountable.
• Reduce repeat victimisation.
• Test an approach, share experiences and develop good practice.

Many specialist court responses to domestic abuse involve some, or all of these goals.

Types of initiative

There are a number of different models of specialist approaches to domestic abuse in adversarial systems. A specific court may be designated as a domestic abuse court, or domestic abuse cases may be "clustered", with allocation to a specific judge or team and / or the identification of specific dates in the court calendar for domestic abuse hearings. Alternatively, cases can be "fast-tracked" through the mainstream court system.

There are also variations in which issues specialist courts will deal with, and how they carry out their work. In some initiatives, for example, only criminal matters are addressed. Within these, some courts will tackle all aspects of criminal matters, while others may only provide separate pre-trial domestic abuse calendars or deal with non-evidentiary issues.

Some courts deal only with civil cases, giving priority to domestic abuse over other matters. There can be specific sessions for orders relating to domestic abuse, specialist staff, and advice provision to victims, and the court may try to link to criminal issues.

In some initiatives, both criminal and civil matters are handled by the domestic abuse court. The courts may involve combining court appearances regarding a particular offender and victim (civil or criminal) before a single judge or group of judges. MacLeod and Weber (2000) noted that some of these courts hold separate calendars for civil and criminal cases, while some mix civil and criminal cases into one calendar.

There are also variations in how legal personnel are used and in the overall number of judges / sentencers and prosecutors who may be involved with each system (and the extent to which their remit extends beyond domestic abuse). Often, specialist courts have designated judges and staff who build up particular expertise, although it is also possible for a specialist approach to involve all personnel. Thus, some courts will integrate all evidentiary court appearances before a single judge, whereas others will use more than one. Similarly, in some cases there will be designated prosecutors, where in others, all prosecutors may deal with domestic abuse. MacLeod and Weber (2000) also noted that a specialist approach often involves the use of intake units and case processing to help victims access appropriate services and to expedite progress.

There are also variations in approaches to disposals, although it has been suggested that specialist courts often share a focus on the need to stress the seriousness of domestic abuse and to change the behaviour of the offender. Many of the US courts have had a focus on addressing offenders' behaviour through training sessions or referral to perpetrator programmes, and offenders and victims can be referred to a variety of programmes ( e.g. MacLeod and Weber, 2000; Shaffer, 2004). Some may also involve the monitoring, supervision and review of cases and disposals. Sacks (2002) and Cook et al (2004) suggested that compliance monitoring was a feature of some specialist court models.

Some courts take a very specific therapeutic, problem-solving, preventive and / or restorative approach to work with perpetrators and victims, and there is often an emphasis on improving outcomes for victims, defendants and communities. Specialist approaches may also involve the use of risk assessment, bringing together all of the agencies working with victims and their families to consider all of the issues relating to the case and to make an informed assessment of risk to victims' and children's safety ( e.g. Cook et al, 2004).

A further common feature of specialist approaches is the provision of a victim-centred approach, with access to victim and witness support and advocacy services (MacLeod and Weber, 2000; Sacks, 2002) and a strong emphasis on victim safety. The nature of this can vary (to include the development of a new service as an integral part of the specialist provision, or the extension of an existing service) but Cook et al (2004), in describing provision at five sites in England and Wales, noted that advocacy support generally included some, or all of the following:

• Reporting progress to victims.
• Informing courts on behalf of the victims.
• Providing support to victims.
• Co-ordinating information sharing.
• Carrying out outreach work in the community.

Specialist court responses also generally involve attempting to deal with domestic abuse quickly, as well as taking a multi-agency, integrated approach to service provision.

THE IMPACT AND EFFECTIVENESS OF SPECIALIST DOMESTIC ABUSE COURTS

Although specialist domestic abuse courts are a relatively recent development, and there are some limitations to the evidence available, there is a growing body of material to suggest their impact and effectiveness, and the overall findings of the associated research are generally positive ⁶⁶.

Benefits of specialist court approaches

A number of benefits of specialist court approaches have been highlighted. For example, the evaluation of five specialist courts or fast-track systems in England and Wales (Cook et al, 2004) found that these had created the necessary infrastructure to enable continuing improvements to effectiveness and efficiency in dealing with domestic abuse. A subsequent evaluation of sites at Caerphilly and Croydon (Vallely et al, 2005) noted "positive and significant changes to working practices and outcomes" (p2). Some of the more specific ways in which domestic abuse courts can have a positive impact have been identified, including developing or improving the following:

• Understanding and practice in addressing domestic abuse ( e.g. Cook et al, 2004; Helling, undated; MacLeod and Weber, 2000).
• Multi-agency / partnership working, co-ordination and consistency ( e.g. Center for Court Innovation, 2001; Cook, 2003; Cook et al, 2004; Fritzler and Simon, 2001; Helling, undated; Steketee et al, 2000).
• The effectiveness and speed of response ( e.g. Center for Court Innovation, 2001; Cook et al, 2004; Steketee et al, 2000).
• Case management, evidence-gathering and information to prosecutors ( e.g. Ellison, 2002; Helling, undated; Smart, 2004).
• Provision to victims and children ( e.g. Cook, 2003; Cook et al, 2004; MacLeod and Weber, 2000; Standing Together Against Domestic Violence, 2003; Walsh, 2001).
• Victim experiences, including safety, confidence and satisfaction ( e.g. Cook et al, 2004; Dawson and Dinovitzer, 2001; Grundy, 2000; Lexicon Ltd., 2005; Vallely et al, 2005).
• Criminal justice outcomes ( e.g. Cook, 2003; Cook et al, 2004; Cullis, 2003; Lexicon Ltd., 2005; MacLeod and Weber, 2000; Smart, 2004; Vallely et al, 2005).
• Accountability for perpetrators and compliance with conditions ( e.g. Helling, undated; Lexicon Ltd., 2005) and a more informed approach to bail conditions ( e.g. Cook et al, 2004).
• Links between civil and criminal issues ⁶⁷ ( e.g. Sacks, 2002; Steketee et al, 2000; Walsh, 2001).
• Public awareness or confidence and a strong message about the seriousness of domestic abuse ( e.g. Cook et al, 2004; Helling, undated).
• Reduced costs or good value for money in responding to domestic abuse ( e.g. Cook et al, 2004; Shaffer, 2004).

CONSTRAINTS AND CONCERNS WITH SPECIALIST PROVISION

Although much of the emerging material is positive, however, some constraints, barriers or concerns have also been highlighted in some courts, including the following ⁶⁸:

• Limited or insufficient resources, including financial and other resources ( e.g. Cook et al, 2004; MacLeod and Weber, 2000; Mazur and Aldrich, 2003).
• Remaining problems with the attitudes or commitment of some personnel, with variation in approaches and level of training ( e.g. Blissett, 2002; Ford et al, 1995; Fritzler and Simon, 2000; MacLeod and Weber, 2000; Mazur and Aldrich, 2003; Thomas, 2001; Tsai, 2000).
• Difficulties in information flow, identification of relevant cases, information sharing and lack of common systems ( e.g. Cook, 2003).
• Issues with some aspects of policies and procedures ( e.g. Cook et al, 2004; Keilitz, 2001; MacLeod and Weber, 2000; Steketee et al, 2000).
• Issues with some actions taken, such as treatment of breaches of bail or a focus on fines ( e.g. Cook et al, 2004).
• Lack of links between civil and criminal issues ( e.g. Cook et al, 2004).
• Some concerns about combining civil and criminal jurisdictions ( e.g. Lexicon Ltd., 2005).
• Gaps in some provision to victims ( e.g. Cook, 2003).
• Levels of attrition, with limited use of other evidence, and problems of compelling victims to testify ( e.g. Cook et al, 2004; Dawson and Dinovitzer, 2001).
• Difficulties in evaluation, or gaps in data ( e.g. Cook, 2003; Mazur and Aldrich, 2003).
• Difficulties in measurement of the effectiveness of some perpetrator programmes and lack of clear evidence from reliable evaluations ( e.g. Mullender and Burton, 2001; Tsai, 2000).
• Unintended consequences of the court or practical difficulties, such as security, privacy, access, scheduling etc. ( e.g. Cook, 2003; Fritzler and Simon, 2000; Mazur and Aldrich, 2003).

Promoting good practice

There have been many positive suggestions about overcoming some of these constraints and developing good practice in specialist provision, and these include the following:

• A co-ordinated response, and multi-agency partnership working ( e.g. Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Karan et al, 1999; MacLeod and Weber, 2000; Mazur and Aldrich, 2003).
• Clear guidelines, policies and protocols ( e.g. Alderson-Gill & Associates Consulting Inc., 1998; Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Thomas, 2001).
• Identification of cases ( e.g. Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005).
• Provision of appropriate and "enhanced" independent victim support, advocacy information and services ( e.g. Cook, 2003; Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Mazur and Aldrich, 2003).
• Committed and trained staff with clear roles ( e.g. Cook, 2003; Fritzler and Simon, 2001; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Keilitz, 2001; Lexicon Ltd., 2005; Mazur and Aldrich, 2003; Thomas, 2001; University of Huddersfield, 2000).
• Risk assessment and risk management ( e.g. Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005).
• Appropriate court facilities ( e.g. Cook, 2003; Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Mazur and Aldrich, 2003).
• Judicial monitoring and accountability of offenders ( e.g. Mazur and Aldrich, 2003).
• Appropriate perpetrator programmes ( e.g. Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005).
• Addressing children's interests ( e.g. Keilitz, 2001; Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and Home Office, 2005).
• Effective procedures (including court listing) ( e.g. Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Karan et al, 1999; Thomas, 2001).
• Integrated data collection and distribution ( e.g. Cook, 2003; Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005; Karan et al, 1999; Keilitz, 2001; Standing Together, 2005).
• Addressing equality and diversity issues ( e.g. Cook et al, 2004; Her Majesty's Courts Service, Crown Prosecution Service and the Home Office, 2005).
• Management of community expectations ( e.g. Lexicon Ltd., 2005).
• Identification of resources ( e.g. Cook et al, 2004; Lexicon Ltd., 2005; MacLeod and Weber, 2000).

Generally, from the evidence, there is a widely-held view that specialist domestic abuse court provision can be beneficial in addressing some of the limitations apparent in the traditional court process, with considerable evidence of good practice being shared ⁶⁹.