Domestic Violence Prosecutions – A Step Too Far?

Written 11th September 2015 by Olliers Solicitors

Violence against Women and Girls (VAWG)

A report produced by the Crown Prosecution Service (CPS) in June this year showed that there were more Prosecutions for offences categorised as “Violence against women and girls” (VAWG) than the previous year. (The Director of Public Prosecution’s speech in relation to VAWG can be found here.)

The report showed more than 107,000 such prosecutions in the year to April, up 16,000 (18%) on the previous year. The figures are for crimes “primarily” against women, but male victims are also included. The statistics include cases of rape, domestic violence and “honour” crime.

What are offences of Domestic Violence (DV)?

Domestic Violence is crime perceived to be between family members or partners. The most commonly visualised instance is a man assaulting his girlfriend but it includes occasions when children assault their parents or when an ex partner assaults a new partner.

The CPS and Police were criticised in the past for not pursuing allegations made against a complainant or dropping cases when retraction statements had been made.

Changing Attitude in Prosecuting Domestic Violence

In recent years the attitude has completely changed. Now the CPS and Police are very proactive and they pursue cases as far as they can. The Police are able to use a new tool provided under legislation namely Domestic Violence Protection Notices (DVPN’s). The CPS now often compel reluctant complainants to attend Court using witness summons or by applying to rely on less reliable hearsay evidence to prove a case. The worry is that the scales may have tipped too far onto the Prosecution side and innocent people may be convicted or pursued when they have done nothing wrong. The CPS Domestic Abuse Guidelines can be found here.

Due to the very nature of the allegations, calls to the Police are made by complainants who are often emotional or under the influence of alcohol or drugs, or both. These calls are often made after an argument in a heated atmosphere. The reliability of information provided in this context is questionable, and sometimes unreliable.

Once the Police arrive they know that they need to take a statement from the complainant as soon as possible, either in the form of a formal s9 statement or in a pocket note book, to get an account. Once the Police have a signed account, then they are able to pursue a complaint, even if the complainant states clearly in their account that they do not wish it to go to Court. People in the UK believe that if they say they don’t want a case to go to Court then that will be an end to the matter. That is not correct.

After an account is given to the Police, if it reveals an offence they will arrest the suspect and interview him. After interview the Police liaise with the CPS to decide what will happen next, usually after a risk assessment takes place.

Domestic Violence  Protection Notices (DVPN)

A Domestic Violence Prevention Notice (DVPN) is a notice served by the police in a case where they are not prosecuting an individual and are taking no further action. A DVPN is authorised by a Police Superintendent and can be issued to protect  the alleged victim from  further violence and/or threats. This can be done with or without their  consent. A DVPN places certain conditions on the person which may include stopping the perpetrator from being in the victim’s home, stopping them contacting the victim and restricting them from returning whilst the notice is in place. A DVPN can last up to 48 hours and during that time the Police must apply to a Magistrate to grant a Domestic Violence Protection Order (DVPO) which can then last up to 28 days although this can be opposed in the Magistrates Court. Breach of the Domestic Violence Protection Order is a criminal offence for which a custodial sentence can be imposed.

The Police can pursue a DVPN or alternatively charge the defendant and take him to Court. A caution is not usually available for Domestic Violence cases even if it is a minor offence and the suspect has no previous convictions.

Court Hearings and ‘Unreliable Evidence’

Sometimes in DV cases the complainant has second thoughts about proceeding with the complaint. This may well be because the original account, given in the heat of the moment, was in sober reflection inaccurate.

Complainants often make ‘retraction statements’ saying they don’t want to proceed with the case against the suspect. This often has the opposite to the intended affect. Rather than dropping the case, the CPS, after a risk assessment, are likely to apply to Court to obtain a witness summons and serve it upon the complainant. If this is served upon them then they are compelled to attend Court. If they don’t they could end up with a jail sentence for contempt of Court. If the complainant had lied in her original account then this added pressure could force her to continue with the lie in Court, potentially convicting an innocent man.

If a complainant does not attend Court then the CPS may consider to proceed with the case in their absence. If the CPS has a copy of the original 999 call or a body cam interview made by the complainant at the time of the allegation or shortly after then they can apply for this to be played to the court as proof that the incident happened. This is an exception to the exclusionary hearsay rule for what is termed ‘res gestae’ evidence.

Certain criteria apply before 999 calls or video evidence is allowed in and these applications have to be vigorously opposed as the defendant loses the ability to cross examine the witness as they are not present at Court. Various tactics can be employed and it is crucial to instruct a solicitor who specialises in allegations of domestic violence.

We can suggest that the evidence is not res gestae under the rules looking at the legislation and R v Andrews caselaw. We could argue that the evidence should not be admitted as the trial would be unfair. Again there is various caselaw in this area including R v Riat which looked at various appeals when a number of defendants were convicted on cases based on hearsay evidence in the absence of the complainant. If the evidence is allowed in then there is a real risk that miscarriages of justice could happen with a defendant not getting a fair trial.

Domestic Violence Lawyers

Written by  Toby Wilbraham, Criminal Defence Solicitor. Toby has be at Olliers Solicitors for in excess of 20 years and is an advocate both in the Magistrates Court and a Higher Court Advocate in the Crown Court. Toby specialises in defending clients facing allegations of domestic violence with a notable success and a high acquittal rate.

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