Chief Constable of Cleveland Police v Barry Jemmett

A magistrates’ court must consider a protected person’s opinion when deciding whether to make a domestic violence protection order, but may make the order despite express disagreement. The statutory test concerns whether protection from violence or a threat of violence is necessary. It does not require prediction that the protected person will engage with support agencies, remain separated from the restrained person, or make a particular future decision. A DVPO is an urgent, civil and short-term measure addressing the immediate aftermath of domestic abuse. Its purposes include securing immediate safety and protected space for autonomous decision-making.

Cleveland Police applied to Teesside Magistrates’ Court for a domestic violence protection order against Barry Jemmett under section 28 of the Crime and Security Act 2010. The court accepted that violence had been proved on the balance of probabilities, but refused the order because the protected person did not want it and was predicted not to engage with support services or take advantage of the protected period.

The matter came to the High Court by way of case stated under section 111 of the Magistrates’ Courts Act 1980. The questions concerned the relevance of the protected person’s views and anticipated conduct, the effect of section 28(5), and the applicability of criminal restraining-order authorities.

1. Appeal allowed. The magistrates’ court’s refusal of the DVPO was legally impermissible because it involved errors of law. No further order was necessary or appropriate.
2. The statutory scheme requires two preconditions: proof on the balance of probabilities that the restrained person has been violent towards, or threatened violence towards, the protected person; and a judicial conclusion that the order is necessary to protect the protected person from violence or a threat of violence.
3. The court must consider any opinion of the protected person under section 28(4)(b)(i) of the Crime and Security Act 2010. However, section 28(5) permits an order where the protected person does not consent, including where they positively disagree.
4. The court must not base its decision on a prediction that the protected person will not engage with agencies, will resume cohabitation, or will make another future choice. Those matters are not additional statutory criteria. A DVPO has an independent protective value in securing a further short-term period of safety and a separate value in providing protected space for autonomous decision-making.
5. The criminal restraining-order authorities in R v Picken, R v Brown and R v Herrington were inapplicable and did not assist. They concerned criminal sentencing, orders made after a passage of time, and autonomous decisions about an ongoing relationship. They did not concern urgent, short-term civil protection.
6. The decision to make or refuse a DVPO belongs to the police or court and should not be attributed to the protected person.

• High Court (Administrative Court): Allowed the appeal by way of case stated and answered the questions of law. No further order was necessary or appropriate.
• Teesside Magistrates’ Court: On 25 May 2022, dismissed Cleveland Police’s application for a DVPO, accepting that violence was proved but concluding that the order was unnecessary because the protected person did not want it and would not take advantage of it.