Domestic Violence
Principle
Aggravating factor
In the past, if an offence of violence occurred in a domestic context, it was sometimes considered to be less serious than a similar offence in a non-domestic context - in effect, the domestic context was viewed almost as a mitigating factor.
Today, far from being considered a mitigating factor, violence in the domestic context is seen by society as an aggravating factor because it amounts to a fundamental breach of trust - everyone is entitled to feel safe in his or her personal relationships.
Safety of victims or children
CPS regards domestic violence as particularly serious as it often involves a continuing threat to a victim's safety and, in the worst cases, the victim's life and the lives of others (including children) may be at risk.
When deciding whether or not to prosecute, the safety of the victim, children or any other vulnerable person is to be a priority.
Cultural issues
Cultural difference is not a reason for failing to protect minority ethnic community victims of domestic violence.
Guidance
Crown Prosecutors must ensure they are thoroughly familiar with CPS policy on prosecuting cases of domestic violence, before handling domestic violence cases.
The policy is fully set out in the public document “Policy on Prosecuting Cases of Domestic Violence” and in the document ”Guidance for prosecutors”. <see further below in this section>
To avoid duplication, the contents of those two documents are not fully replicated in this chapter.
Revised CPS policy on prosecuting cases of domestic violence
Following extensive consultation, CPS policy on prosecuting cases of domestic violence was revised in 2004/5. The new Policy was published by way of a public statement in booklet form in February 2005 and can be found in the Publications/Prosecution Policy and Guidance/Domestic Violence section.
The booklet explains how The CPS deals with cases involving domestic violence. It refers to The CPS definition of domestic violence, the Code tests, charging, retractions, delay, bail, and bind overs. <Policy, CPS Online, Reports>.
There are three Annexes. Annex A contains examples of typical domestic violence behaviour and possible criminal offences arising out of those actions. Annex B refers to bail conditions and Annex C gives contact details for some of the key support agencies. <Policy, CPS Online, Reports>.
Guidance for prosecutors
Guidance for prosecutors was issued at the same time as the Policy and can be found on the intranet. <Guidance, CPS Online, Reports>.
It contains guidance on a number of subjects including:
- dynamics of domestic violence,
- terminology,
- gender,
- avoiding assumptions,
- abuse within same sex relationships,
- elder abuse,
- disability issues,
- minority ethnic issues,
- refugees,
- immigration,
- children,
- inter-agency working,
- civil proceedings,
- case management issues,
- ECHR issues,
- exclusion orders and Home Office /other agency publications
(such as Living Without Fear, Multi-Agency Guidance etc.) <www.homeoffice.gov.uk/domesticviolence/pubslist.htm>
A checklist of issues to be considered in domestic violence cases is also provided, by way of aide-memoir.
The Guidance will be updated in loose-leaf format as and when required, until the time comes for a full reprint. As at April 03, only section 13 (Immigration) has been updated by inserting a new para 13.3. The next sections to be updated will be ASBOs and Children following legislation expected in Spring/summer 03.
Home Office Circular on Domestic Violence 19/2000
This Circular replaced the earlier HO Circular 60/90 and is annexed to the Guidance for ease of reference. It contains detailed guidance to the police on suggested best practice in addressing domestic violence taking into account changes in relevant legislation, findings of recent research and developments in terms of policy and practice. (www.homeoffice.gov.uk/circulars/2000)
CPS national Domestic Violence Co-ordinators' Network
A national Network of CPS Domestic Violence Co-coordinators was set up in November 2001. Its aims include:
- facilitating implementation of the new policy;
- promoting the exchange of information and good practice;
- identifying and addressing problems.
The intranet DV Bulletin Board site assists with these aims.
Definition of Domestic Violence
“Domestic violence” is a general term to describe a range of behaviour often used by one person to control and dominate another with whom they have, or have had, a close or family relationship and in which the abuser operates from a position of perceived power.
For the purposes of prosecuting offences, The CPS definition of domestic violence is
“Any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member.”
This definition includes all forms of violent and controlling behaviour and includes familial elder abuse, sibling abuse, parent abuse and in-law abuse, regardless of gender or age of either the victim or defendant.
Victim Personal Statements
These statements can be particularly helpful in cases in which the victim has asked that proceedings be dropped but where it is felt that a prosecution is necessary in the public interest.
The VPS in such cases gives victims the opportunity to tell the court and the defendant how they feel about the relationship and its future, the incident and the proceedings - whilst allowing the prosecution to carry out its duty to prosecute in the public interest.
Direct Communication with Victims project
Crown Prosecutors are required to write to victims in cases in which the charges have been substantially altered or dropped.
This criterion includes domestic violence cases that have been discontinued following retraction by the victim. The contents of letters written to victims in such cases are likely to become known to the defendant. The letters must therefore be carefully drafted to avoid compromising the victim's safety and so that the decision whether to prosecute or not, is not falsely attributed to the victim.
The Code for Crown Prosecutors is clear that although a victim's views are important, they cannot be the final word; other factors must also be taken into account. Not only would it be factually wrong therefore to attribute to the victim the decision to discontinue but, in a domestic violence case, such attribution could place the victim in great danger if the abuser believes the victim controls the prosecution process. <See further below in this Section>
Guidance on writing letters within the Direct Communication with Victims project can be found in the Manual of Guidance, Standard Paragrphs, CPS Outline, Manuals found on the intranet.
Procedure
Enhanced evidence
Wherever possible, cases should be constructed on the basis of evidence other than that of the victim. Active consideration must be given to what other evidence might be available, either as an alternative to the victim's evidence or in support of that evidence. <see further at Paragraph 17.10 of the Guidance, CPS Online>
If it is necessary to call the victim to give evidence in court, all options should be considered to ensure the victim's safety is a priority and to assist the victim/witness to give their best evidence. <see further Policy and Guidance, CPS Online>
Retraction
If the victim asks for the case to be dropped or asks to withdraw their statement, the case should then be supervised by an experienced prosecutor who will consider what other evidence is available and whether it is in the public interest to continue the prosecution - with or without the victim's evidence.
A written statement must be taken from the victim by the police. That statement should explain the reasons for withdrawing support, saying whether the original complaint was true and whether the victim has been put under any pressure to withdraw support.
The police should also give their views about the case, how they think the victim might react to being required to attend court and, in particular, what they feel about the risks to the victim or other vulnerable persons' safety.
See further at <paragraphs 4.4 - 4.11 of the Policy and see the Guidance generally, CPS Online, Reports>.
Continuing with a prosecution against the victim's wishes
In some cases, the violence is so serious, or the previous history shows such a real and continuing danger to the victim or children or other vulnerable person, that the public interest in proceeding with a prosecution has to outweigh the victim's wishes.
Such decisions are only to be made by experienced prosecutors after consultation with the police. <See paragraphs 4.12-4.15 and 5.5 of the Policy and the Guidance generally, CPS Online, Reports>.
Generally, provided there is sufficient evidence, the more serious the offence or the greater the risk of further offences, the more likely it will be that a prosecution is needed in the public interest - even if the victim asks for proceedings to be dropped.
Letters to victims under the Direct Communication with Victims project
This project requires Crown Prosecutors to write to victims in cases in which the charges have been substantially altered or dropped. In domestic violence cases such letters must be drafted carefully to avoid compromising the victim's safety.
Guidance on writing such letters within the Direct Communication with Victims project can be found in the <Manual of Guidance, Standard Paragraphs, CPS Online, Manuals> on the intranet.
Useful Links
<CPS ONLINE, Reports>
www.cps.gov.uk
<Policy, CPS Online, Reports>
<Guidance, CPS Online, Reports>
www.homeoffice.gov.uk/domesticviolence/pubslist.htm
www.circulars.homeoffice.gov.uk
Manual of Guidance, Standard Paragraphs, CPS Online, Manuals
<Home Office Circular on Domestic Violence No.19 of 2000>
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