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Consultation on the Prosecution of Domestic Violence Cases legal guidance - summary of responses

December 29 2014

Introduction

This is a summary of responses to the 8 week public consultation undertaken by the Crown Prosecution Service (CPS) on the revised Legal Guidance on the Prosecution of Domestic Violence cases.

For clarity, the consultation document is referred to as the revised guidance, and the amendments that have been subsequently made following the public consultation will be referred to as the 'Domestic Abuse Guidelines for Prosecutors'.

The document sets out:

  • the background to the consultation;
  • changes made to the final guidelines;
  • an overall summary of the responses;
  • a summary of the responses to the specific questions; and
  • our conclusions.

Background

On 14 May 2014, the Director of Public Prosecutions (DPP) launched a consultation on the revised CPS legal guidance on the 'Prosecution of Domestic Violence Cases'.

The revised guidance was produced to update the CPS position on the prosecution of domestic violence which had been published in March 2009 and to consolidate the two currently published documents (a policy statement and legal guidance for prosecutors) into one document. The revisions also provided an opportunity for the CPS to reflect internal CPS operational developments and cross-Governmental policy that have been implemented since March 2009.

The revised legal guidance focused particularly on:

  • the revised Government definition of domestic violence and abuse which now includes coercive and controlling behaviours, and recognition that victims may be sixteen years old and over;
  • a reference to enhancing CPS operational practices and better ways of working with the police, including a Joint Domestic Violence Evidence Checklist, detailed guidance around victim reluctance and witnesses summonsing; improved handling of uncooperative, reluctant and 'hostile' victims; and,
  • a short section on how prosecutors work with issues relating to deceased victims; and, for the first time specific advice with regard to sixteen and seventeen year olds. Improvements were also made to the revised guidance on other groups of victims such as older victims; victims from minority ethnic communities; immigrants, refugees, asylum seekers; and individuals involved in prostitution.

The consultation was preceded by a large stakeholder meeting, hosted by the CPS and chaired by the Director of Public Prosecutions (DPP); discussions at the meeting which were used to inform some parts of the revised guidance. The meeting was attended by police, lawyers, academics, victims' representatives and experts, and other stakeholders with an interest or expertise in domestic violence and abuse issues. The meeting was widely welcomed as an opportunity to discuss how the CPS can make informed improvements to the revised guidance to be issued.

As part of the consultation, respondents were asked to answer six questions. The consultation period ended on 9 July. A small number of responses were received after this date and were given full consideration.

A list of respondents can be found at Annex A of this document. We are grateful to everyone who took the time to respond to this consultation.

The final guidelines – key changes

In light of the responses received following the consultation, we have amended the guidance to create a final version to be known as Domestic Abuse Guidelines for Prosecutors. When published, these guidelines will replace the policy statement and legal guidance currently published, and come into effect on 29 December 2014.

The changes made to finalise the Guidelines include:

Terminology

A number of respondents commented that the CPS should reflect non-physical and violent forms of abuse - as a result we will now refer to the totality of this offending as 'domestic abuse'.

A number of responses also highlighted our language was too focused on intimate partner violence – we have changed the approach within the document so that the language better reflects familial abuse, including forms of familial abuse such as honour based violence and forced marriage as part of the overall text.

A number of respondents identified that use of the word 'victim' placed assumptions on how cases were dealt with by police and prosecutors. We have recognised this complexity and endeavoured to use 'complainant' in the majority of the document, where a domestic abuse incident is reported.

Recognition of dynamics

A number of respondents highlighted that the document did not include abuse experienced by males, whilst some commented that the CPS had not recognised the gender-biased violence against females. We have attempted to be inclusive of both genders and transgender individuals, and have added new sections specifically relating to males, and females, as well as enhancing our section on lesbian, gay, bisexual and transgender (LGBT) individuals.

We have clarified and expanded the text around counter allegations, and assumptions and perceptions following comments by a number of respondents.

We have developed our guidelines on social media and coercive/controlling behaviour, and also taken into account the issues that were raised in relation to child protection.

Case building

We have recognised that case building needs to include evidential considerations in relation to coercive/controlling behaviours. The guidelines now reflect how prosecutors and police ought to consider other avenues of evidence gathering through better information sharing with other agencies. We have also clarified how information could be sourced from other agencies.

Support provisions

We have taken into account comments made by a number of respondents with regard to limited availability of IDVAs, other support resources (eg – refuges), and have highlighted other avenues of support. Accordingly, we have expanded the support services listed in Annex D.

We have identified that the CPS can provide better support through enhanced communications and through more effective use of support services available to the local area.

Victim specific needs

A number of respondents commented that clearer guidance was needed in relation to LGBT issues, the distinction between male and female victims, victims from minority communities and victims with mental and physical disabilities. We have expanded our guidelines incorporating experiences and comments from sector-specific respondents.

Summary of responses

We have received a total of 75 responses to the public consultation – they were as follows:

  • Responses from Organisations (including victims' groups);
  • Reponses from the public sector;
  • Responses from the legal profession
  • Responses from academics, and
  • Responses from individuals

Details of the three categories of respondents are illustrated in Table 1 below.

Table 1: Table of respondent type

Category of Respondents Number
Organisations (including victims' groups) 38
OPublic sector 23
Legal profession 7
Academics 1
Individuals 6
Total 75

Not every respondent gave specific answers to each individual question in the consultation. Each individual response has been carefully reviewed by the CPS Strategy and Policy Directorate. Not all respondents followed the specific questions posed in the consultation, but their views were considered.

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Summary of responses to specific questions

Question 1: Do you agree that the CPS approach to understanding the context of domestic violence is right and well-informed?

There were 64 responses to this question. The overwhelming majority welcomed the overall approach taken by the CPS with specific supporting comments saying the document and understanding of abuse:

'is well informed, thorough, and a comprehensive approach...'
'... (is) considered to be very well written to properly achieve the objective of setting out the extensive range of potential circumstances of domestic violence.'
'is very comprehensive and covers all aspects of domestic violence'.

A few respondents highlighted that, to cover the impact and dynamics of the full range of violent, coercive and controlling behaviours, the CPS should refer to these acts as domestic abuse, and not acts limited to violence.

A further concern raised was that prosecutors did not give the same attention to cases where the relationship was not of an intimate nature.

It was felt by a number of respondents that whilst our approach was generally well-informed and encapsulated the dynamics and impact of domestic abuse, our focus did not fully capture the gender-biased dynamics of domestic abuse, nor the full range of acts or behaviours through which coercive or controlling behaviour can be perpetrated, such as through the use of social and/or online media.

A number of respondents highlighted that in many cases, the complexity of identifying the primary 'aggressor' and primary 'victim' meant that the language used around 'victim' and 'defendant' made assumptions about the individuals from the outset, which then may be proved to be wrong. Linked to this, a number of respondents raised concerns about the complexities of counter allegations, and assumptions made by criminal justice agencies based on the perception of a relationship.

CPS Response

We are very pleased that the general response to this question was so positive. We have considered the suggested comments and have sought to clarify the issues that have been raised, such as through referring to these behaviours as domestic abuse, rather than domestic violence.

We have responded to comments around language being too focused on intimate partner violence, by incorporating language by endeavouring to advise prosecutors inclusively of intimate partner and familial abuse throughout the new guidelines. We have also attempted to reflect non-violent behaviours and violent behaviours when referring to abuse. By using this inclusive language, we hope prosecutors will be assisted by a fuller definition of domestic abuse, when making charging considerations.

Suggestions by numerous respondents to address assumptions made by the use of the words 'victim' and 'defendant' were valuable, particularly in cases where the primary aggressor is not always immediately identified by a report to the police. As prosecutors, the term 'complainant' will be very familiar. We have endeavoured to identify that where an individual has reported an allegation they are referred to as a 'complainant', although we also recognise the value of the term 'victim'. Where possible, we have used both terms and tried to be clear where the term 'complainant' is preferred over the word 'victim'. Accordingly, the aggressor has been mainly referred to as 'perpetrator' or 'offender'.

To reflect the abuse experienced by males, and the gendered abuse experienced by females, we have attempted to use gender-neutral language throughout the introductory sections of the new guidelines; we have addressed gender specific issues in the later sections of the document through the addition of two new sections relating to males, and females. We have also expanded and enhanced our section on LGBT individuals to ensure that more of the experiences sector-specific groups told us about were included.

In addition, we have developed our guidelines to prosecutors on the use of social media being used to perpetrate abuse; we have deliberately not referenced different forms of social media abuse (such as revenge pornography), but have taken a wider approach to ensure that all offending behaviour is captured.

We have expanded and enhanced the text around counter allegations, and assumptions and perceptions to reflect the complexity of some relationships and the dynamics of abuse which may be taking place.

We accept that the police also need to have a similar understanding of these issues, and we will work closely with them as we work to deliver CPS improvements and other improvements across the criminal justice system.

Question 2: Have we identified the right potential lines of enquiry for evidence gathering and the right public interest factors to be considered when the CPS makes a charging decision? If not, how can we address this?

There were 63 responses to this question. The overwhelming majority welcomed the overall approach taken by the CPS, agreeing with the position to focus on evidence other than that of the complainant.

Many respondents acknowledged that the Joint Evidence Checklist used by police and prosecutors was robust and provided a comprehensive approach, but that the list could not be exhaustive. Several respondents thought that 'considerable thought had gone into the approach taken), evidenced by the various checklists... for any police officer compiling evidence with a view to successful prosecution'. The continued reference and use of the Joint Evidence Checklist throughout the guidelines was also commented on by many as a serious mechanism by which police and prosecutors can build the strongest cases.

A few respondents highlighted that other potential lines of enquiry could be added to the Joint Evidence Checklist, including guidance on the gathering of evidence relating to coercive and controlling behaviours, and in cases where counter allegations had been made.

Some respondents also commented that no specific reference had been made to the identification of timeframes for the police and CPS to collate evidence and enable charging decisions to be made.

CPS Response

We recognise that there will need to be amendments and additions to the Joint Evidence Checklist at Annex B of the new guidelines. In order to take into account any further additions required, the CPS will work with police colleagues after they have also considered suggestions in light of Her Majesty's Inspectorate of Constabulary's (HMIC) Report on the police response to domestic violence, which was published in March 2014.

We are of the opinion that the review of any amendments to the Joint Evidence Checklist should be postponed to also take into account the Home Office's recent consultation on domestic abuse legislation. We will work closely with the police and Home Office colleagues to ensure any further feedback can be captured.

The CPS guidelines have been written to specifically not include timeframes around decision making. The CPS recognises that domestic abuse decisions need to be made quickly and with the complainant/victim's safety as the primary focus, but the complexity and variation of abuse and the context of relationships will render any decision to include timeframes too prescriptive. We are of the opinion that including timeframes may also restrict opportunities for effective evidence gathering and building of the strongest possible cases. We have reflected that police and prosecutors will need appropriate time to make such decisions on a case by case basis and have therefore decided that timeframes should not be included.

To ensure that evidential considerations are captured, the guidelines now provide prosecutors with further advice on issues relating to self defence and counter allegations, such as children or dependants as possible sources of information. Further guidance is detailed within the document around the use of children's statements.

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Question 3: Do you think the guidance clearly sets out the basis for how we handle cases where complainants are not willing to support a prosecution? If not, please suggest how we could approach 'evidence-led' prosecutions (prosecutions continued without the victim)?

There were 59 responses to this question. Almost every respondent answering this question welcomed the overall and clear approach taken by the CPS with specific reference to the position to rely more heavily on the evidence and res gestae available.

A large proportion of the respondents to this question also suggested additional factors to be taken into consideration to better understand why complainants and victims retract allegations, as well as increasing the use of support services by police and prosecutors where retractions or withdrawals of support do occur.

There were many respondents who raised concerns about the criminalisation of some complainants. In particular, specific concerns were raised around the criminalisation of women who withdraw their support from a prosecution or retract an allegation of domestic abuse.

Additional points were also raised by some on how agents and counsel working on behalf of the CPS should deal with domestic abuse cases.

CPS Response

The additional reasons for why some complainants and victims may withdraw support or retract an allegation have been added to the list included in the guidelines - these additions are specifically linked to cases of familial abuse, issues relating to youths and disabled individuals.

Prosecutors are also advised of the increased need to involve support services and organisations wherever possible to ensure that reasons around retractions and withdrawals are properly understood; this will also assist in the prosecutors' understanding of how the case may need to proceed, whether if at all, or whether it should be discontinued.

The final guidelines now contain an expanded section on what police and prosecutors should do where they suspect that a criminal act has been committed where a complainant has withdrawn support from a prosecution or retracted an allegation of domestic abuse. The guidelines provide a clear cross reference to separate and detailed legal guidance published by the CPS in such circumstances, and the need to ensure that such cases are referred to specialist prosecutors who will have received bespoke training to deal with these sensitive and complex matters.

Revised advice is now included in the guidelines improving the section on instructions to agents and counsel, and their respective obligations when acting on the CPS' behalf.

Question 4: Do you agree we have properly outlined the safety and support issues affecting victims and how those issues can be managed by the CPS?

There were 61 responses to this question, with the majority welcoming the management of support and safety issues by the CPS. Specific supporting comments include:

'good explanation of victim presentation...'
'...well covered. By the very nature of offences, victims and witnesses are particularly vulnerable and generally require enhanced support and assistance during the court process beyond those involved in most other crimes. The guidance covers this well, especially in behaviours undermining the credibility of evidence in other types of cases...'
'The CPS guidance is very welcome in this area and clearly states the safety and support that women victims should be receiving in court...'
'...welcome breadth of support included in this section and agrees that it outlines the range of support issues that a prosecutor might encounter...'

Some respondents highlighted the regional variation of support availability - and that prosecutors would need to be aware of local provisions.

Other respondents highlighted that issues around specific types of complainants or victims would require slightly different support and safety issues, and recommended that the CPS guidelines reference this.

CPS Response

The CPS was pleased to see the positive comments with regard to safety and support measures. Further advice has been provided in the guidelines to ensure that prosecutors are better aware of regional variations of support provisions in local areas. To assist prosecutors, updates have been made to Annex D with regard to services' and organisations' remit of support, and further services have also been included as suggested by some respondents.

In addition, the guidelines now reflect how best the CPS can obtain information held by other agencies which may be relevant to the prosecution of domestic abuse cases.

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Question 5: Have we demonstrated sensitivity and understanding to the issues which may be experienced by victims from different groups? If not, how could this be achieved?

There were 63 responses to this question, with the majority supporting the detail provided in this section; many respondents also recognised the difficulty the CPS faced in providing a full and detailed section here, but that the CPS had made a significant effort to address as many issues as possible. Supporting comments include:

'yes - this is covered very well...'
'... demonstrates sensitivity and understanding to issues but is not exhaustive in analysis of different groups (would be almost impossible), but succeeds in probing main issues from groups most frequently encountered...'
'good level of sensitivity - welcome detailed guidance...'
'... the guidance is useful and will help prosecutors to begin to understand some issues faced by people who are victims of DV and are part of one or several of these groups... there will be other issues not addressed within the guidance, but the strength of guidance lies in its concern to deliver a fair and sensitive service..'

A large number of respondents commented that the CPS needed to reflect the specific needs of individuals within any group.

Some respondents highlighted that some groups had not been included in this section - which were namely, women, men, individuals with mental health issues, and the familial abuse aspects recognised across each of the sub-section. It was also highlighted that the sections on LGBT individuals could be better presented, and that the section on minority ethnic groups could focus on further issues provided by some of the sector-specific respondents.

CPS Response

The CPS has recognised and reflected that individuals experiencing domestic abuse may belong to one or more of the groups listed, and that individual needs should be assessed on the specific facts of the case and the context of abuse involved.

The guidelines have taken into account comments by sector-specific respondents and now include new sections on male and female gendered abuse; a revised and expanded LGBT section; enhanced guidance on handling cases involving victims and complainants with mental health issues, learning difficulties as well as improved section relating to individuals with physical disabilities; and, a revision of the sections relating to ethnic minorities and older victims.

Every effort has been made to ensure that throughout the guidelines, and not just in this section, that issues affecting the groups of individuals listed are considered in the context of intimate partner and familial abuse. Where possible, different examples have been given to ensure that prosecutors have an illustrative guide as to how certain matters may need to be handled

Question 6: Please let us know if you have any other comments

There were 65 responses to this question, with a range of responses received; these can be categorised by issues impacting on the CPS and issues for other agencies.

CPS-related issues

The overwhelming majority of respondents warmly welcomed the revised guidance and were very supportive of the position that had been taken. Whilst it was recognised that there were pockets of good practice across England and Wales, a number of respondents wanted to know how the CPS could effectively deliver the practices and policies detailed.

Some respondents highlighted clarification to the reference made in relation to the court's duty regarding bail procedures, child protection and the commissioning of witness services via local arrangements.

CPS Response

Following the publication of this document, the CPS will consider how the revised practices can be delivered. Part of this will be addressed through refreshed training for prosecutors; further operational guidance will also be developed to ensure prosecutors have practical advice, guidance and tools to hand for delivering a high level service to victims of domestic abuse.

Corrections and clarifications with regard to bail procedures, child protection and witness services have been addressed.

Issues for other agencies and other Government Departments

Throughout the responses received, respondents raised issues which fall outside the scope of the CPS's responsibility and are rather that of other Government Departments or agencies. Whilst the CPS is an interested party in some of these issues, these matters will be referred to the relevant agencies as part of the CPS' ongoing commitment to the cross-Government action on domestic abuse. Key issues raised by respondents include:

  • the police role in sourcing and gathering evidence to build the most effective case;
  • the approach and use of out of court disposals (including restorative justice techniques);
  • Specialist Domestic Violence Courts;
  • listing of domestic abuse trials;
  • safety arrangements relating to court infrastructure (separation of victims and offenders and their friends/family at court, including use of facilities, such as entrances, exits, waiting rooms, toilets, etc;
  • lack of services available for some victims (e.g. LGBT victims and disabled victims);
  • lack of funding for support services, including provision of IDVAs and ISVAs;
  • how to implement learning from domestic homicide reviews; and
  • clarification of the role of others in court (e.g – IDVAs, other supporters etc).

Conclusion

The CPS is grateful to all those who responded to the consultation and the time that they have invested in doing so. We have carefully considered all the responses received, and have taken them into account when amending the document to produce the final guidelines.

We have made a number of changes in light of the consultation and they are now reflected in the guidelines published on 29 December 2014.

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Consultation Criteria

The six consultation criteria are as follows:

  1. Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.
  2. Be clear about what your proposals are, who may be affected, what questions are being asked and the time scale for responses.
  3. Ensure that your consultation is clear, concise and widely accessible.
  4. Give feedback regarding the responses received and how the consultation process influenced the policy.
  5. Monitor your department's effectiveness at consultation, including the use of a designated consultation coordinator.
  6. Ensure your consultation follows better regulation and best practice, including carrying out a Regulatory Impact Assessment if appropriate.

These criteria must be reproduced within all consultation documents.

Annex A - List of respondents

  1. Individual Respondents
    • Vicki Wharton
    • Henry Emblem
    • Daniel Bunting
    • Rob Allen
    • Caroline Airs
    • Helene Whitehall
  2. Organisations
    • Ilkeston Neighbourhood Watch
    • NatCen Social Research
    • Stonewall
    • Eaves
    • The Intercom Trust
    • Berkshire East & South Bucks Women's Aid
    • Men's Matters Radio
    • Men Have Rights Too
    • Galop
    • Trafford Domestic Abuse Service
    • Mothers' Union
    • Twelves Company
    • Swindon Women's Aid
    • Somerset East & West Domestic Violence User Group
    • Office of the Children's Commissioner
    • Gay Advice Darlington & Durham
    • Women's Aid Federation of England
    • Manchester Women's Aid
    • Women's Aid Federation of England, Rights of Women, Welsh Women's Aid
    • RESPECT
    • British Association of Social Workers
    • Independent Academic Research Studies
    • Royal College of Psychiatrists
    • Standing Together Against Domestic Violence
    • Southall Black Sisters
    • Co-ordinated Action Against Domestic Abuse
    • Victim Support
    • Woman's Trust
    • Muslim Women’s Network UK
    • ADVANCE Advocacy Project
    • Equality and Human Rights Commission
    • London LGBT Domestic Abuse Partnership
    • Suzy Lamplugh Trust
    • British Association for Counselling and Psychotherapy
    • Refuge
    • MsUnderstood Partnership
    • Paladin
    • Stay Safe East
  3. Public Sector
    • Worth Services
    • London Borough of Bromley
    • Adults & Health Commissioning
    • Adult Social Care - Wirral
    • National Bench Chairmen's Forum
    • Nottinghamshire County Council
    • Ministry of Justice
    • HM Crown Prosecution Service Inspectorate
    • Children and Family Court Advisory and Support Service (CAFCASS)
    • Crown Office of the Prosecutor Fiscal Service
    • Leeds City Council Domestic Violence Team
    • Surrey Safeguarding Adults Board
    • Sheffield City Council
    • CPS East Midlands
    • Buckinghamshire County Council
    • Warrington Domestic Abuse Partnership
    • Independent Police Complaints Commission
    • Welsh Government
    • Police and Crime Commissioner for Avon and Somerset
    • South Wales Police
    • Avon and Somerset Constabulary
    • National Black Crown Prosecutors Association
    • Police and Crime Commissioner for Northumbria
  4. Legal Profession
    • Magistrate (in own capacity)
    • North & East Hertfordshire Magistrates Bench
    • Magistrate (in own capacity)
    • Gloucestershire Bench
    • The Criminal Law Solicitors Association
    • Justices' Clerks' Society
    • Magistrates' Association
  5. Academics
    • Dr Alison Phipps

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