Can I be prosecuted where the ‘victim’ isn’t supporting the case?

The short answer to the question is yes, you may still be charged if the victim is unsupportive of a prosecution.  

Many clients believe that charges are brought by the complainant themselves in criminal proceedings. The phrase “she/he is pressing charges” is not correct. The Crown Prosecution Service (CPS) are responsible for the charging and prosecution of a defendant, in most cases, after a police investigation.  

Relevance of Unsupportive Victims in Domestic Abuse Cases 

The question may be particularly relevant in domestic abuse cases. Alleged victims may have not reported the abuse in the first instance, for example, the police may have been notified by a neighbour or other third party of an alleged incident, or the alleged victim may make a statement then withdraw this before a charging decision is made, or the alleged victim may withdraw support at a later point in proceedings.  

In some cases where the alleged victim has withdrawn support, or they have retracted their statement, the prosecution may find it appropriate to issue a witness summons to the alleged victim. This would mean that the person is required to attend court, and the prosecution will continue with their evidence. The CPS, however, often do not deem this appropriate in domestic abuse situations, as they must consider the burden of attending court on the alleged victim.  

If the prosecutor decides that a summons would not be appropriate in the circumstances, at this point, a prosecutor must review the case. If the other evidence would not pass the evidential aspect of the Full Code test (is there sufficient evidence to provide a realistic prospect of conviction), then the prosecutor will likely offer no evidence.  

If a prosecutor reviews the evidence and the evidence does pass the evidential code without the support of the alleged victim, then at this point, the case may continue as an Evidence Led Prosecution.  

What is an Evidence Led Prosecution (ELP)?  

An ELP is where the prosecution does not rely on a statement given by the complainant, but instead on evidence otherwise available to pursue a prosecution. Guidance from the CPS on Domestic Abuse states that “the prosecution should, from the outset, consider the possibility of proceeding without the victim’s support and this should be clearly recorded within the prosecutor’s review”. The CPS are therefore required to consider the possibility of continuing without a statement from the alleged victim.  

In 2020, His Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) and His Majesty’s Inspectorate of Constabulary and Fire Rescue (HMICFRS) published a joint report entitled ‘Evidence led domestic abuse prosecutions’. The report specifically focused on the implementation of Evidence Led Prosecutions (ELPs) within domestic abuse cases. Pertinently, one of the recommendations to the CPS in the 2020 report was that “prosecutors should ensure that in all domestic abuse cases, they set out clearly at the charging stage whether an ELP is viable and, if so, define an effective prosecution strategy”. This therefore suggests that not only can prosecutions go ahead without the support of the alleged victim, that the prosecution is actively encouraged to explore the viability of continuing without the support of the alleged victim in every domestic abuse case that falls at their desk. Practically, this seems that the CPS are often prepared for the possibility of a withdrawal of support from the complainant.  

This is important for anyone facing allegations of domestic abuse as even if the alleged victim is withdrawing their support, or even unsupportive from the outset of proceedings, the CPS standard procedure is to consider that a prosecution may go ahead, nonetheless.  

What Evidence is likely to be used in an ELP in a domestic abuse case?  

In terms of viability of cases continuing as ELPs, the prosecution will have to consider the strength of the evidence other than the statement (or lack thereof) given by the alleged victim. Common types of evidence in domestic abuse cases are 999 calls, body worn video (BWV), other witness statements, telephone and social media evidence, and res gestae evidence. The CPS review of this evidence is key to understanding whether pursuing an ELP is viable. If this evidence passes the evidential test (as above) and the victim is unsupportive, then the case will likely continue as an ELP.  

What is Res Gestae Evidence? 

Res Gestae is a legal principle that allows the circumstances surrounding an event, otherwise regarded as hearsay, to be admitted as evidence in court.  

At Olliers, we frequently deal with domestic abuse cases that are ELPs. For example, Olliers represented a client appearing at the Magistrates’ Court for trial after he was charged with domestic assault. In this case, the alleged victim was unsupportive of a prosecution. There was body worn video of the alleged victim giving evidence to attending officers, but the officers had not attended on the day of the trial. On the day of the trial, Kathryn Lloyd (Senior Associate at Olliers Solicitors), challenged the admissibility of the body worn video of the police officers, that the prosecution said included footage of the alleged victim giving her first account. After objecting to the Res Gestae application made by the Crown, she was successful, and this evidence was not admitted as evidence. The prosecution therefore offered no evidence and the case was dismissed.  

In addition to the above considerations when it comes to the alleged victim withdrawing support, we are also alive to the fact that a prosecution can continue solely on the statement of the complainant, with no other evidence. 

Why do I need a Solicitor if facing an ELP? 

As in the above example, there are complicated rules that govern the admissibility of criminal evidence, for example, the principle of Res Gestae. As illustrated, even if an alleged victim is unsupportive of a prosecution, there is still a need to obtain legal advice as it does not follow that the case will automatically be discontinued for lack of the alleged victim’s support.  

At Olliers Solicitors, we can offer clear, confidential guidance on the strength of evidence, the likelihood of prosecution, and the steps needed to take to ensure that this is appropriately challenged. Being accused of a criminal offence is a stressful experience, and it is vital to seek legal representation and advice at the earliest possible opportunity.