“There is not a specific offence of domestic abuse in our legislative framework”
While Domestic Abuse was defined in the Domestic Abuse Act of 2021, there is no specific offence for Domestic Abuse (DA). Instead, DA can fall under a range of offences including controlling or coercive behaviour in an intimate or family relationship, non-fatal strangulation, common assault, ABH, GBH, stalking, upskirting.
A conviction for common assault, for instance, hides the reality of the domestic abuse perpetrated behind it. Victims and survivors have said that greater recognition of these offences in the law would better honour their experience.
This lack of recognition in our legislative framework also creates unacceptable risk for survivors and other vulnerable people. For example, employers are not able to fully understand or manage the risk posed by a domestic abuser in a workplace even after conducting a DBS check, if the employee’s convictions do not make clear that they perpetrated domestic abuse.
The dangers created by this loophole came into sharp focus when the Government announced the early release scheme
In July 2024, the UK Government announced the SDS40 early release scheme, designed to ease pressure on capacity in the prison system. Where SDS40 applies, a person will be automatically released on licence after they have served 40 per cent of an eligible sentence, rather than 50 per cent.
There are a range of exclusions to the scheme – including sexual offences, national security offences and violent offences with a sentence of four years or more. Prisoners convicted of certain domestic abuse-related crimes – such as stalking, coercive behaviours in an intimate or family relationship and breaching a restraining order – are also excluded.
However, the exemption does not apply to all domestic abusers. Perpetrators of offences such as common assault, for which many domestic abusers are convicted, are not excluded owing to the broad nature of the offence – meaning that some domestic abusers are being released early as a result (MoJ have not yet released SDS40 data on the specifics).
Concerns have been raised by Women’s Aid, Refuge and the Domestic Abuse Commissioner. Yet steps have not been taken to fully close this loophole – leaving survivors at further risk.
This is because exclusions to early release schemes such as the SDS40 scheme can only be made on the basis of the offence committed, according to the Justice Secretary: “We can make these changes in law only by excluding offences, not offender cohorts or offender types. That is why the list of offences covered includes those most closely connected to domestic abuse situations, but it is not of course fully comprehensive.”
The Government told the Justice Select Committee in November 2024 that the SDS40 scheme will unlock prison capacity until Autumn 2025, at which point further use of the scheme will be reviewed. The Government has not ruled out using the scheme again.
This could lead to the early release of more domestic abusers across the country.
A solution.
We are proposing the establishment of a new set of offences aggravated by domestic abuse. These would work in the same way as racially and religiously aggravated offences, which are legislated for under the Crime and Disorder Act 1998.
Under this bill, domestic abusers who are currently convicted of ‘common assault’, for example, would now be convicted of ‘domestically aggravated common assault’.
Perpetrators of these offences could then be excluded from any early release scheme in future; institutions (like employers undertaking DBS checks) could have instant visibility of the context of any offence, in order to better manage any associated risk; and victims and survivors will have the specific nature of their experiences more fully reflected in the perpetrator’s conviction.
Josh Babarinde MP commissioned a research paper from The House of Commons library to explore primary legislation solutions.
That paper, published on 30th November 2024, said that “in order for that context [of domestically abusive behaviour] to affect the operation of early release, a new category of domestic abuse aggravated offences would need to be created and added to the list of offences excluded from early release.”
The Legislative Path
On 9th December 2024, Josh Babarinde MP tabled a new bill that would create offences aggravated by domestic abuse. This would ensure that all domestic abuse cases are properly identified in the criminal justice system and lay the groundwork for a fully comprehensive ban on domestic abusers’ eligibility for SDS40 early release.
Now, it’s up to the government to support this bill – or use their upcoming Victims, Courts and Public Protection Bill to bring forward the same legislative changes.
At a Justice Select Committee meeting in November 2024, the Director General for Policy, Prisons, Offenders and Analysis said that, to address the legislative loophole for some domestic abusers, “primary legislation…could conceivably be changed”