Aide-mémoire on charging in domestic violence cases
Purpose
This 'aide-mémoire' has been prepared in response to concern expressed by HMCPSI at the level of discontinuance in domestic violence cases, and about the relationship between the Code tests and the CPS Policy for Prosecuting Cases of Domestic Violence. It aims to assist prosecutors with charging advice in domestic violence cases.
Relationship between the Code and domestic violence policy
The domestic violence policy statement and guidance should always be read in conjunction with the Code. These documents support and underpin the Code by providing further guidance. The policy and guidance should never be interpreted in such a way that the Code test is diluted or supplanted.
Points to consider
Building a robust case
Actively build a case. Make sure you are satisfied that all available evidence has been gathered, including all information that either undermines or supports the Crown's case (refer to the Attorney General's Guidelines on Disclosure and the Code for further detail).
Don't assume that a complainant giving evidence in court is the only way to prove the matter. Instead, consider if there is other material that supports the prosecution case but is independent of the complainant, or corroborates the complainant.
Whilst each case must be considered on its merits, you should routinely ask yourself the following questions:
- Is the victim's account corroborated by any other evidence?
- What other evidence can we rely upon apart from the victim's account?
- a police officer's account?
- a neighbour's account?
- another eye witness statement (for example, from a child)?
- 999 tape (remember to listen to this even if someone else made the call)?
- CCTV or head camera footage?
- hearsay?
- bad character?
- a note of injuries in the police incident report book?
- evidence of previous incidents?
- medical evidence?
- any photos of injuries and the scene?
- any damage on property noticed by the officer?
- Is there a history of previous incidents?
- Are there any civil orders in place?
- Has the defendant breached any criminal or civil orders in the past?
- Do you intend to rely upon expert evidence? If yes, have you fully briefed the expert?
- Have you carefully considered whether children should give evidence (for example, through discussions with the police and special measures meetings)?
Make sure you consider all available charges and record full reasons for your decisions. Always comprehensively endorse the MG3 to show the elements you consider.
Ensure that the police follow Local Service Level Agreements by providing all relevant material to the Duty Prosecutor.
If there is an action plan for the police, make sure that it is detailed and prioritised, so that time isn't wasted gathering evidence that doesn't substantially take the case any further.
Where it isn't necessary to detain a suspect in custody, short periods of pre-charge bail may be helpful to ensure the best evidence can be gathered before a prosecution is brought. But remember that the safety of the complainant and any children is a key consideration. Suitable bail conditions - that do not restrict the victim and children - should be imposed to prevent further offending and intimidation of the complainant.
Find out whether there are any concurrent or imminent public law or private law family proceedings involving the complainant and/or accused. Also, find out whether Social Services has been alerted to the violence or involved with the family.
Make sure you are aware of available civil remedies and how they might affect criminal proceedings.
Try to prevent unnecessary delay and take decisions in a timely manner. But remember to balance the need for expedition with the need for proper investigation.
Evidence by and about the defendant
Don't focus solely on the behaviour of the victim. Instead, find out details of the defendant's previous misconduct, if any, at the earliest opportunity so you can assess whether this evidence could be used as part of your case:
- Does the defendant have any related previous convictions or acquittals?
- What was the defendant's conduct and demeanour like when arrested?
- Has the defendant made any admissions?
- Are there any previous domestic violence reports that may not have been pursued to court?
- Is any available bad character evidence admissible?
Explore the credibility of the defendant's account as part of the charging consultation:
- How plausible is the defendant's account?
- Were there any signs of injury to the defendant upon arrest (see domestic violence guidance on dealing with self-defence and/or counter-allegations)?
- Are there any contradictions in the defendant's account?
- Has the defendant made no comment from which an adverse inference can be drawn?
Victim participation and support
Consider the nature of the victim's evidence:
- What does the victim say happened?
- Would a pre-trial witness interview be appropriate and useful to test the evidence (not to ascertain whether the victim will attend court)?
- Does the victim have any previous convictions or cautions?
Make sure that the victim's statement includes information about whether s/he supports the prosecution. If the victim indicates that they wish to withdraw the complaint or their support for the prosecution, ask yourself:
- Is there any reason to believe that the victim might have been pressured or frightened into retracting? Some victims may be particularly vulnerable, for example, victims with mental health issues or learning difficulties.
- Has the victim previously retracted a complaint or failed to give evidence in proceedings? If so, why? What was the nature of the previous allegation?
- Has a risk assessment been conducted by the police?
- If the victim resolutely refuses to proceed, have you considered:
- continuing the case without the victim?
- using the hearsay provisions to include the complainant's evidence?
- compelling them to attend by use of a witness summons and, if appropriate, a warrant?
- What would be the effect of proceeding or not proceeding with the case without the victim?
Previous retractions are common in domestic violence cases, and they do not necessarily indicate that a victim cannot be relied upon to give evidence. If appropriate, try to obtain an explanation from the victim of previous retractions.
Do all you can to support the victim through the criminal justice process to encourage them to participate in the prosecution and to give their best evidence.
- Has the victim indicated what support s/he needs through the prosecution process (for example, special measures, reporting restrictions)? Has this been reflected in the police's action plan?
- Do you have enough information to ensure that victim care issues can be comprehensively assessed (for example, on the MG2 and MG11 forms)?
- Has an Independent Domestic Violence Advisor or specialist domestic violence support agency made contact with the victim?
- Does the victim have any individual needs such that they require specialist support (for example, cultural or language barriers, alcohol or drug dependency, disability, physical or mental illness)?
- Can the case be progressed expeditiously through a specialist domestic violence court?
- How would the victim feel if forced to face the defendant during trial?
- Has a victim impact statement been taken? Is it up-to-date?
Policy Directorate
Crown Prosecution Service
April 2008