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CPS - Guidance on Prosecuting Cases of Domestic Violence


1 - Introduction

We have updated the CPS Policy for Prosecuting Cases of Domestic Violence to reflect changes to legislation and practice. This updated Guidance is designed to provide greater detail about some of the key parts of the Policy

Cases involving domestic violence can be very difficult to prosecute, and because of their nature require sensitive and careful handling, especially with regard to victim care and support.  The provision of accurate and up-to-date information to the victim throughout the life of the case, together with quality support, and careful consideration of any special measures requirements are all important factors for the CPS to consider.

It is important that we work closely with the police and other agencies to ensure that the best evidence is gathered and presented to the court. A strong, coordinated prosecution team is required to proactively build and manage a case.  It is also essential that we liaise with Independent Domestic Violence Advisers – IDVAs (where these exist), Witness Care Units (WCU), and voluntary sector support organisations, to ensure that the victim's safety and support needs are addressed throughout the life of a case.

This is the third time we have updated the Policy and Guidance. They needed to be updated to address a number of developments, including:

  • new legislation and the implementation of existing legislation (for example, the Domestic Violence, Crime and Victims Act 2004, Part II Youth Justice and Criminal Evidence Act 1999, the Forced Marriage (Civil Protection) Act 2007);
  • the implementation of Good Practice Guidance on Domestic Violence, published in November 2005;
  • recent CPS initiatives in relation to matters such as charging, training, victim and witness care, pre-trial witness interviews, and the Violence against Women strategy;
  • recent cross-Government initiatives, including the roll-out of Specialist Domestic Violence Courts (SDVCs), IDVAs and Multi-Agency Risk Assessment Conferences; and
  • the 2007-08 review of Specialist Domestic Violence Courts – Justice with Safety.

The Policy, Guidance and leaflet for victims and witnesses demonstrate our continuing commitment to improving the prosecution of domestic violence cases and the service we provide to victims and witnesses. 

Employee policy on domestic violence

Given the prevalence of domestic violence in society, there are likely to be both victims and perpetrators working within the CPS. The CPS published its revised employee domestic violence policy in 2007. Copies are available on the CPS website:

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2 - The definition of domestic violence

The Government definition of domestic violence is:

"any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality".

An adult is defined as any person aged 18 years or over. Family members are defined as mother, father, son, daughter, brother, sister and grandparents whether directly related, in-laws or step-family.

The definition is supported by an explanatory text:

"The definition acknowledges that domestic violence can go beyond actual physical violence. It can also involve emotional abuse, the destruction of a spouse's or partner's property, their isolation from friends, family or other potential sources of support, control over access to money, personal items, food, transportation, the telephone and stalking. Violence will often be witnessed by children and there is an overlap between the abuse of women and abuse (physical and sexual) of children. The wide adverse effects of living with domestic violence for children must be recognised as a child protection issue. They link to poor educational achievement, social exclusion and to juvenile crime, substance misuse, mental health problems and homelessness from running away. It is acknowledged that domestic violence and abuse can also manifest itself through the actions of immediate and extended family members through the perpetration of illegal activities, such as forced marriage, so-called 'honour crimes' and female genital mutilation. Extended family members may condone or even share in the pattern of abuse."

This is also the definition that the police will use to identify cases of domestic violence to be referred to the CPS under the Director's Guidance on Charging.

The safety of victims and children in addition to the defendant's accountability are so important to us, that when prosecuting cases of domestic violence, we will apply our policy to all cases of current or former partner or family abuse irrespective of the age of the perpetrator or the victim. For the purposes of our own domestic violence monitoring, we will flag cases involving victims under the age of 18 as domestic violence and child abuse (and any other appropriate flag) where those situations arise.

For cases involving perpetrators under the age of 18, cases should be flagged as either 'young offender' (YO), 'persistent young offender' (PYO) and 'prolific priority persistent young offender' (PPPYO). Youth offenders are therefore identified as the sum of these.

From such flagging we will be able to see the number of cases that fall within the category of domestic violence child abuse, and those perpetrated by youth offenders, as well as adult to adult cases.

When monitoring for Government purposes, we will count as domestic violence only the cases that fall into the Government's definition.

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3 - The impact and dynamics of domestic violence

We have published our policy statement because we want victims as well as the general public, to be confident that we understand the serious nature of domestic violence and the real and lasting effects it has on them, their children, their wider family and society as a whole. By letting people know what they can expect from us when we prosecute cases of domestic violence, we aim to improve confidence in the criminal justice system.

Domestic violence is widely recognised as being a pattern of controlling and coercive behaviour, through which the perpetrator seeks to exert power over the victim. Whatever form it takes, domestic violence is rarely a one-off incident. It is often a series of incidents, including those of greater and lesser severity but often increasing in frequency and seriousness which may have a cumulative impact on the victim.

Victims of domestic violence suffer on many levels – including deterioration to their health, loss of housing and disruption to education. They may lose the freedom to live their lives how they want, without fear. Pregnancy itself is may be a trigger for the beginning or acceleration of violence.1

The impact of domestic violence on children is examined further in Section 8. The short, medium and long term consequences for children of chronic exposure to domestic violence can include:

  • emotional disturbance;
  • relationship problems;
  • aggressive behaviour and the use of aggression to solve problems;
  • self-esteem problems and school failure;
  • increased psychiatric problems and, in some children, post-traumatic stress disorder; and
  • in the long term, a greater likelihood of involvement in violent relationships, especially amongst boys.2

The act of leaving does not automatically make the victim safe.3. Research shows that at the point of seeking help or leaving, victims can be subject to the highest risk of being subjected to further violence. Stalking, harassment and threats of violence are common.4 Domestic violence does not necessarily stop when the victim leaves – many violent "domestic" assaults occur after the victim has left the abuser.

Because of the particular dynamics of domestic violence, it is crucial that prosecutors are proactive in addressing the security and safety of the victim and any children from the point of charge and throughout the prosecution.

Offenders in cases of domestic violence may have much to lose if the prosecution ultimately leads to a permanent separation. Some of the conflict that may surround separation could ultimately lead to witness intimidation. There may be a number of issues that the defendant may seek to exploit including:

  • custody and access to children;
  • outstanding financial burden, including mortgage and joint bills;
  • location of personal belongings, vehicles and property;
  • ownership of pets;
  • extended family; and
  • contact with peers and friends.

It is also crucial that prosecutors recognise the importance of support for victims from the outset and throughout the life of the case. The dynamics of domestic violence mean that victims will often be reluctant to support the prosecution case, or may change their minds part way through the prosecution process. The Specialist Domestic Violence Court Review 2007-08 (Justice with Safety) identified the importance of support for domestic violence victims in improving their safety, confidence in the criminal justice system, participation in prosecutions, and therefore overall prosecution outcomes.

Specialist Domestic Violence Courts review 2007/08

Prosecutors must therefore consider special measures requirements at an early stage, and should alert the relevant referral agency to refer the victim to a specialist domestic violence support service early on in appropriate cases. Examples of when this would be appropriate are: when there has been previous violence; the victim has retracted previous statements; escalation of violence; presence and involvement of children in an incident; incidents where is it apparent that the victim is isolated and has little other support.

For further information on the role of prosecutors in supporting victims and keeping them safe, see Section 9.

Views of 'success'

Prosecutors should also be aware that the definition of 'success' in domestic violence cases can differ depending on whether it is being looked at from our  perspective or that of the victim. Many victims see safety (feeling safe and being safe) as a more important measure of success than successful prosecution outcomes. They may feel that success has been achieved if: the violence or harassment stops; if the perpetrator leaves; if the perpetrator is held accountable for their actions; or, if further violence is prevented. They may also see success as having access to services (like outreach support, refuge, housing) and feeling generally supported.

Equally, how a victim defines or views 'success' can vary depending on the time at which they are asked. At the point of crisis, success if often viewed as the ability and readiness of the police to intervene and make the violence stop at that moment in time. Further engagement may be counter-productive from the victim's point of view, as it is likely to involve contact with the defendant at court or may involve the defendant 'punishing' the victim (for example, by further harassing her or withholding finances from her or any children).

Mediation, restorative justice or diversionary measures such as conditional cautions are inappropriate in domestic violence cases. It is clear from data that when a victim reports an incident of domestic violence to the police it is unlikely to be the first instance of violence. In particular, the safety of the victim and the victim's family could be seriously compromised by such resolutions. Furthermore, in order for either mediation or restorative justice to be successful it is important for the parties involved to enter into this arrangement freely and on an equal basis. Given the types of behaviours that are implicit within relationships where domestic abuse is present – for example coercion, degradation and bullying – this would not be possible. Recourse to such outcomes is also likely to undermine the confidence of victims in the criminal justice system.

'Cooling off' periods

The dynamics of domestic violence cases and the importance of the safety of the victim also mean that so-called 'cooling off periods' prior to charge are inappropriate. The idea behind these is to allow the victim a chance to calm down and think about the incident, before prosecutors check if the victim wants to proceed with a prosecution.

Any time given for an incident to 'cool off' and allow both defendant and victim to have time to think afterwards is potentially dangerous. This is because:

  • the safety of the victim and any children may be compromised, and the victim may be further harassed, abused or intimidated;
  • the message a 'cooling off' period sends out is that this is behaviour that the parties should manage and sort out for themselves;
  • it puts the onus onto the victim, rather than upon the police carrying out a proper investigation and the CPS considering whether we have sufficient evidence to charge; and
  • our policy and the policy of ACPO is to be proactive in prosecuting domestic violence cases not reactive.

1 'Why mothers Die 200-2022- Report on Confidential enquiries into maternal deaths in the UK (CEMACH)' (Lewis, Gwynneth, and Drife, James, 2005)

2 'Watching from the stairs: Towards evidence and evidence-based practice in work with child witnesses of domestic violence' (Rivett et al., 2006).

3 'Reducing domestic violence, what works? Assessing and managing the risk of domestic violence' (Walby and Myhill 2000) and 'Domestic violence, sexual assault and stalking: Findings from the BCS. HO Research Study No. 276 (Walby and Allen 2004)

4 'Living with significant harm: a follow up study NSPCC' (Brando, Thoburn, rose and Belderson (2005).

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4 - Identification and flagging

Cases falling within the Government definition of domestic violence should be identified both on the file jacket (for example, through a readily identifiable sticker, marking it with the letters 'DV' or using a different colour file jacket) and flagged on CMS as domestic violence.

If a domestic violence case is going through the system and has not yet been formally identified, the prosecutor or a member of the administrative team in the case should identify and flag it on CMS, as well as informing the police and any other relevant agency. The police will generally only identify adult cases of domestic violence. CPS staff should be alert to cases of domestic violence involving youth perpetrators or victims and flag them as "DV" as early as possible.

Some cases will need more than one flag to ensure that the correct case handling procedures are followed and the volume and outcomes of such cases can be accurately monitored. There may be instances, for example, where the case also includes racism, homophobia or rape. These cases together with cases of child abuse should be identified and cross flagged to reflect this. All cases referred to Specialist Domestic Violence Courts should be flagged as such.

Prosecutors should therefore consider whether domestic violence cases should also be 'cross flagged' with the following:

  • child abuse for under 18 victims;
  • persistent young offenders for defendants under the age of 18;
  • rape;
  • domestic violence specialist court; and
  • hate crimes (for example, disability hate crime, racist, religious, homophobic, crimes against older persons).

 We will apply our Policy for Prosecuting Cases of Domestic Violence to all of these cases.

  • Once the file has been identified and flagged on CMS as a domestic violence case, the age, gender, ethnicity, disability and religion/belief of the defendant should also be recorded on CMS.
  • There should be a local agreement in place about who records the information about the victim on CMS and WMS.
  • All CPS Areas should also be recording the following data for domestic violence cases:
    • outcomes for all cases where there has been a victim retraction – not just those where there has been an unsuccessful outcome (using the drop-down box on CMS);
    • information on the relationship between the victim and defendant and their gender, using the drop-down boxes on CMS. This will provide data on same-sex relationships;
    • information about referral of victims to specialist services on WMS;
    • information about whether a victim accepted the offer of a pre-trial court visit, whether the victim was summonsed, if a Victim Personal Statement was taken or if the victim was identified as vulnerable or intimidated; and
    • the number of special measures applications made and the outcomes on WMS.

Recording all of this information enables us to monitor our performance on domestic violence. We are then able to identify areas where improvements need to be made (including in relation to victim support and safety). It also helps ensure that an experienced prosecutor can be assigned to the case, and that all of the relevant applications and case handling issues can be dealt with in a timely and effective manner.

Performance management has been a critical factor in helping the CPS to improve outcomes in cases of domestic violence and identify areas where more work is needed. The aim of performance management is to provide data and analysis to Areas to improve domestic violence prosecutions. Specifically, it helps to:

  • ensure that the CPS Policy and Guidance on Prosecuting Cases of Domestic Violence are being complied with by CPS staff, counsel and agents;
  • ensure that the identification and flagging of domestic violence cases are robust;
  • make sure that file endorsements and casework quality assurance policies are complied with;
  • identify training and development issues for staff;
  • inform future service planning; and
  • identify any disproportionality in service provision across all communities, particularly those whose needs may not be met through traditional service provision (for example, Black and minority ethnic communities, disabled people, members of the lesbian, gay, bisexual and transgender community).

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5 - Terminology

The term "victim" may be perceived negatively by some of our community partners. The term "survivor" is considered to be more empowering for adults and children and, as such, is the preferred terminology for some of our partner agencies. However, our policy reflects the CPS' role in domestic violence criminal proceedings and so the term "victim" (victim of a crime, victim of an offence) is used.

For similar reasons, the Policy and Guidance refer mainly to a "defendant" rather than to an "abuser" or "perpetrator".

In this document, all references to "men" should be read to include "boys" and all references to "women" should be read to include "girls". The terms "men" and "women" are more inclusive. than "male" and "female" and therefore include transgender individuals, regardless of whether or not they have undergone formal gender re-assignment.

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6 - Gender and the CPS violence against women strategy

The Violence against Women Strategy provides an overarching framework for crimes that have been identified as primarily being committed by men, against women, within a context of power and control.

Domestic violence prosecutions should therefore be addressed within an overall framework of violence against women and an overall human rights framework. Where appropriate, prosecutors should make links with other topics such as rape and sexual offences, so-called honour crimes, forced marriage, child abuse, crimes against the older person, pornography, human trafficking, prostitution, and female genital mutilation.

Prosecutors should be aware, when dealing with a case of domestic violence, that the victim may not just be a victim of domestic violence. The victim may be subjected to rape and other sexual offences, or may have been subject to a forced marriage. The victim may be under 18, and would accordingly be a victim of child abuse. Prosecutors should recognise the connections and links between crimes of violence against women – in terms of both defendants and victims.

Prosecutors should also recognise that domestic violence also takes places within same sex relationships that men can be abused by women and that family members can be abused by siblings, children, grandchildren and other relatives.

Prosecutors should recognise the diversity of victims. Victims' experiences of domestic violence are undoubtedly affected by identities distinct from gender, like their ethnicity, age, sexuality, disability, immigration status, and religion or belief. Each victim's individual experiences of violence will be different, and some victims may encounter additional barriers to accessing justice. For example, an older, disabled woman experiencing sexual violence at the hands of her partner could find it more difficult to report abuse because of her dependence on the perpetrator and her fear that no services are available to her. A young woman forced into marriage may find it difficult to report domestic violence because she fears she will not be taken seriously as a result of her age. The safety and needs of each victim should be assessed on an individual basis.

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7 - Avoiding assumptions

When dealing with members of groups that traditionally experience discrimination (for example, women, Black and minority ethnic people, disabled people, older people, lesbians, gay men, transgender people, bisexuals and transsexuals), prosecutors should avoid making stereotypical assumptions.

Where appropriate, expert advice should be sought on religious, cultural or other issues from relevant agencies, and particularly from specialist organisations (for example, Black and minority ethnic women's groups) that deal with domestic violence. In some cases, these organisations may already be involved with the victim playing an important role as advocate and supporter.

However, whilst prosecutors should always be sensitive to the needs of diverse communities, cultural sensitivity should not be used as an excuse not to take appropriate action in domestic violence cases.

Specialist advice can also be sought from the CPS' Equality and Diversity Unit at CPS Headquarters in London (see CPS Directory for contact details).

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8 - Issues relevant to particular groups of people

This section outlines the impact of domestic violence on people from different communities and the particular considerations that prosecutors will need to bear in mind when dealing with cases involving victims and witnesses who are:

  • children;
  • lesbians, gay men, bisexual or transgender;
  • older people;
  • disabled;
  • from Black and minority ethnic communities (including gypsies and Travellers);
  • refugees and asylum seekers;
  • other people of insecure immigration status; and
  • sex workers or trafficked people.

We know that domestic violence occurs throughout society, amongst people of all ethnicities, sexualities, ages, disabilities, religions or beliefs, immigration statuses and socio-economic backgrounds. Every person has an equal right to be protected by the criminal law and by the CPS. Equality and diversity – and by this we mean treating people fairly, whilst respecting people's differences – is fundamental to delivering fair prosecutions and essential if we are to command the confidence of all the communities we serve.

CPS staff should refer to the wider Single Equality Scheme – which covers disability, gender and gender identity, race, sexuality, religion or belief and age – for detail of the commitments we have made to meet our statutory duties to promote equality.

Single Equality Scheme

Where appropriate, advice should be sought from specialist local or national groups or the CPS Equality and Diversity Unit. Some of the national organisations at Annex A will be able to provide details of local specialist support services.

Children

Children can be victims themselves, they can be witnesses to domestic violence, or they can be affected by domestic violence simply because it took place in the house where they live.

Prosecutors must take the rights and best interests of children into full account in domestic violence cases. The safety, physical and emotional well-being of children is essential for those making decisions in cases of domestic violence. The Code for Crown Prosecutors states that a prosecution will probably be required if the offence was committed in the presence of, or in close proximity to, a child (paragraph 5.9j).

Some victims say that they stayed for the children's sake, others that they left for the children's sake. Often when violence is directed at a child, it is a trigger for a victim to make a first complaint to the police, or to decide to leave, even though they may have endured violence themselves for some time.5

There is a significant body of research showing that exposure to domestic violence can have a devastating effect on children. Ninety per cent of children are in the same or next room during the assault. One third of children actively intervenes or runs to get help.6  Many of the children on the "At Risk" registers of local authority social services departments are experiencing or witnessing domestic violence.7

It is not possible to shield children from the adverse effects of living with domestic violence. In fact, some children exposed to witnessing domestic violence have been found to be as emotionally and psychologically damaged as children subjected to severe physical abuse by their parents.8

Research shows that children exposed to domestic violence may suffer from:9

  • poor sleep and excessive screaming in infants;
  • clear signs of terror, yelling, irritability, hiding, shaking and stuttering in young children;
  • Post Traumatic Stress Disorder in children exposed to severe or chronic domestic violence;
  • disruptive and aggressive behaviour (including temper tantrums) in boys, and withdrawal and passivity in girls, at school age;10
  • a tendency to use aggression as a predominant form of problem solving or projecting blame onto others;
  • suicidal tendencies in adolescents; and
  • an inability to form coherent attachments or relationships with other people.11

The presence of children must therefore be treated as an aggravating factor when applying the public interest test. Prosecutors should also always draw it to the court's attention during the sentencing process, as required by paragraph 11 of the Code and the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise.

Prosecutors should always seek information from the police regarding the presence of children in the household, the extent to which they have been exposed to the domestic violence and whether the children are the subject of any orders (for example, child protection register, contact, non-molestation orders). We should also explore whether any child wishes to give evidence.

Prosecutors must take children's interests into account at all stages of the review process and address their safety and welfare as a primary consideration. This is especially so when deciding whether children should be asked to give evidence. Prosecutors need to take into consideration any escalation of violence, whether children were assaulted, any threats to harm children and the willingness of the child to give evidence. Children ought to be informed, consulted and involved in any matter concerning them, in accordance with their age and understanding.

Child witnesses must be afforded as much protection as is necessary and available to enable them to give their evidence in a way that both maintains the quality of that evidence and minimises the trauma suffered.

There may be cases in which a child who witnessed the incident wishes to give evidence, but the victim will not permit the police to interview the child. In such cases, we will need to consider the ECHR implications (child's rights) as well as the evidential and public interest factors that arise. Where the parents have separated (and the estranged parent is not the defendant) it may be possible to approach the estranged parent who maybe able to give consent if s/he has parental responsibility. Ultimately, an approach to the local social services department may be appropriate in order for the police to make arrangements to interview a child. However, this approach should be take on a case by case basis and should be appropriate to the nature and seriousness of the case.

There is a large body of work that accepts that witnessing domestic violence can have physical and emotional consequences for children. Indeed, section 120 of the Adoption and Children's Act 2002 was amended to recognise that witnessing domestic violence could potentially cause 'serious harm' to a child. We should also consider that if children are present during an incident of domestic violence that this may constitute an offence in itself. It is recognised that children can suffer both directly and indirectly as a result of domestic violence.

 We should always consider whether an offence has been committed against the child in particular. This may constitute a specific offence under for example, the Offences Against the Person Act 1861 but we should also consider whether the perpetrator's action constitutes willful assault, ill treatment or neglect in a manner likely to cause unnecessary suffering or injury to health within the definition of section 1 of the Children and Young Persons Act 1933.

This offence carries a maximum penalty of ten years' imprisonment and is an either way offence.

Same sex and transgender relationships

The dynamics of violence within same-sex or transgender relationships are similar to those within heterosexual relationships, but there are likely to be additional barriers to reporting. For example, any pre-existing isolation from the family due to the person's sexuality and/or life-style may be exploited by the abuser.

The victim may fear "outing", or removal of children by social services, or loss of legal rights that would be afforded to a heterosexual person in the same position (for example, tenancy rights or rights of access to children). The potential to use reporting restrictions (under section 46 of the Youth Justice and Criminal Evidence Act 1999) may go some way to alleviating worries about publicity of any court proceedings.

Victims may also fear homophobic or transphobic reactions from the statutory services when reporting incidents (for example, assumptions that gay men and lesbians favour sadomasochistic sex). These fears or previous experiences of negative reactions can make it more difficult to report the violence.

It is also important to be aware that victims of domestic violence within same sex relationships may not have the same access to places of safety as do heterosexual victims. There are few refuges for men, and whilst women may access refuges, lesbians may be subjected to homophobia within the refuge and the abusive partner may be able to gain access to the refuge themselves.

Older people

Some older victims of domestic violence may be mentally or physically frail. There may be a mutually dependent relationship between abuser and victim. Where this situation exists, victims may fear that by reporting the abuse and supporting a prosecution, they will be left without a carer or companion.

Abuse of older people can be in many forms, for example but not limited to 12:

  • financial (theft or misappropriation of assets etc);
  • psychological (infliction of mental/emotional suffering, for example, by sustained verbal abuse);
  • physical (willful infliction of pain, injury, sexual abuse or unreasonable confinement);
  • neglect and abandonment;
  • sexual; or
  • a combination (for example, inadequate provision of care services necessary to maintain the physical and/or psychological well-being of the older person).

The age of a witness is a factor that the court can take into account when determining whether a witness is intimidated under section 17 of the Youth Justice and Criminal Evidence Act 1999. Where a witness is an older person, consideration should always be given to applying for special measures. Although, it should not be assumed that because a witness is older, special measures should automatically be applied for. In particular, prosecutors should actively consider early special measures meetings, issues arising from Achieving Best Evidence, and remote television links if a witness is not able to leave home.

Disability issues

Many disabled people already face problems of negative attitudes towards impairment, isolation from participation in "mainstream" society, limited access to services, low self-esteem and enforced dependence on others to carry out physical tasks necessary for daily living and often survival. This social and physical dependence can increase a victim's vulnerability to domestic abuse.

Abuse can be in many forms, for example but not limited to:

  • withdrawing physical assistance;
  • financial abuse;
  • withdrawing medication/care/mobility aids;
  • denying visitors access to the disabled person;
  • verbal abuse and name-calling; or
  • threats to withdraw care/place the victim in residential care/gain custody of any children.

Disabled victims of domestic violence may remain in abusive relationships for longer, because of these additional barriers. They may feel they cannot leave, because, for example, they have limited economic opportunities, they may lack transport, they feel they are responsible for financial and social tensions within the relationship/family, they fear loneliness and think no-one else would want them, they fear losing their independence and having to move into residential care, or they fear losing their children. Even if a disabled victim wants and is able to leave, there is little emergency accommodation and few refuges have provision for disabled victims.

Disabled women have three times greater odds of experiencing domestic abuse than non-disabled women and for disabled men the odds are two times greater.13

Sometimes the abuser is the victim's carer, with the ability to monitor the victim's movements and conceal or obstruct detection of abusive behaviour. They may be continually present with the victim, making it almost impossible for a victim to report abuse. Disabled victims in these circumstances may be reluctant to disclose abuse or support a prosecution because they fear losing personal assistance or worry about finding appropriate community care.

Witnesses with disabilities may be eligible for special measures under section 16 of the Youth Justice and Criminal Evidence Act 1999. Intermediaries may be particularly useful in some cases. However, no assumptions should be made that these will be wanted. Careful consideration will need to be given to how to support a disabled witness. Measures (other than special measures) that may be appropriate include, for example, wheelchair access to court, hearing loop systems,14 a supporter during the trial and a pre-court familiarisation visit. Some of these measures will be entitlements under the Disability Discrimination Act 1995 and are the responsibility of the court.

If a witness has a learning disability or a mental disorder within the meaning of section 16 YJCEA 1999, it is vital, under section 53 of the same Act, that they can understand questions put to them and give answers that can be understood (the Competency Test). This can be with the assistance of special measures.

Victims should also be encouraged to complete a Victim Personal Statement to ensure that the court is able to fully understand the impact of the crime upon them. More information about Victim Personal Statements can be found at Section 9.

Black and minority ethnic communities, including Gypsies and Travellers

Perceptions or experiences of racism and lack of confidence in the criminal justice system may make it difficult for victims of domestic violence in minority ethnic communities to report an offence or support a prosecution. Pressure from within the immediate and extended family and the wider community, together with cultural traditions, can also act as barriers to reporting offences of domestic violence.

Domestic violence may take different forms within minority ethnic communities. Some examples of these are forced marriage (as distinct from an arranged marriage, where the marriage is based on free consent), dowry-related violence and female genital mutilation. However, it should not be assumed that all domestic violence within minority ethnic communities takes these forms.

There is often a great degree of pressure exerted upon women to remain within the marriage or family rather than leave because of domestic violence. This pressure can come from a variety of sources, including members of the immediate and extended family (both men and women), religious leaders and other leading members of the wider community. In Gypsy and Traveller communities it can be particularly difficult for victims to leave and live in a refuge where they may be expected to use furniture, linen and utensils that are not their own.15

Within some South Asian communities there are complex and powerful strictures about honour and shame that extend beyond the immediate family and often encompass the extended family and wider community. If these strictures are not observed or are broken, it can lead to ostracism, harassment, violence or threats of violence and ultimately, in some cases, death. The term "so-called honour crimes" refers to offending of this type, and "honour killing" is often used to describe a homicide that results from this.

The desire to maintain the reputation and respectability that is vital if their children are to be married within the Asian community in this country or abroad has a very strong impact on some members of the South Asian community. Fear of transferring dishonour to children or other family members is very strong amongst many Asian women and can act as a powerful disincentive to making a complaint or bringing proceedings.

Family members should never be used as interpreters. Interpreters should, wherever possible, be selected from the National Register of Public Service Interpreters to ensure that the interpreter is properly qualified and subject to a professional Code of Conduct. Checks should be made with the victim to ensure that the interpreter does not have any connections with them or their family and some victims may express a preference for the interpreter to be the same sex. Interpreters from within the local community should be avoided, as this may sometimes place victims in additional danger. It is important that checks are made via the witness or victim as verifying this with the interpreter may reveal the victim's identity to the local community as a victim of domestic violence who has sought recourse through the criminal justice system. This could create extreme risk for the victims and their children. Correspondence with victims may also need translating.

Further information about interpreters may be found in The Trials Issues Group Agreement: Arrangements for the Attendance of Interpreters in Investigations and Proceedings within the Criminal Justice System,16

Prosecutors should also be aware of different criminal justice practices in other countries that may affect the willingness of the victim to report and/or participate in the process. For example, in countries like Poland, it is sometimes the responsibility of the victim to take criminal cases forward and to fund the case themselves. In some countries there are also issues regarding a lack of respect for female criminal justice staff. There are countries where the police officers who attend incidents and the witness care officers who support victims and witnesses are usually men. Prosecutors should be aware of these differences so that they can respond sensitively to victims from other countries.

Assumptions that cultural practices must be respected can lead to a refusal or failure by professional agencies to intervene. The CPS view is that cultural difference is not an acceptable reason for failing to protect victims of domestic violence.

Refugees and asylum seekers

Four out of five of the world's refugees are women, children and young people.17 Many of the women who enter Britain as refugees are not independent applicants for asylum, but family members dependent on a husband, father or older man in the family for immigration purposes.

Few of these women receive independent advice or information about their rights and the legal provisions of the host country. They are often unaware of the support systems available and how to access these provisions if they need to do so. They may have also been given false or misleading information about their immigration status or about the criminal justice practices in this country.

Lack of independent immigration status can create an additional barrier preventing women from leaving an abusive relationship. They may fear being deported themselves, or they may fear their family being deported. Hostility shown towards refugees in host countries also deters domestic violence victims from seeking help from appropriate agencies. Racism may polarise communities, making it more difficult for victims to leave their communities to access outside help.

When reviewing a domestic violence case in which the victim is a member of the refugee community or an asylum seeker, prosecutors should take into account the combination of social and cultural factors, communication difficulties, lack of information in their own language and lack of access to informal and formal support, which may make it difficult for the victim to support or take part in a prosecution. The review note should deal with potential problems and possible solutions and set out what steps need to be taken if the victim is to give evidence (for example, special measures, use of an interpreter, support from a specialist support organisation or Victim Support, etc).

Immigration

A person from abroad is granted two years' leave to enter or remain in the UK on the basis of marriage to a person settled here or as an unmarried partner of a person settled here. This is known as the probationary period. If the relationship breaks down within this period, the person is required to leave the UK unless s/he qualifies to remain on another basis.

The Home Office incorporated what is known as the "Domestic Violence Rule" (formerly the "Domestic Violence Concession") into the Immigration Rules in April 2004. As a result, a woman or man who experiences domestic violence during the probationary period may apply for Indefinite Leave to Remain (ILR) in the UK. The person should make the application within the validity of the probationary period, but it is recognised by the Home Office that a victim of domestic violence may not make regularising immigration status the first priority. The Home Office will consider applications from "overstayers" sympathetically. Only a person who has leave to enter or remain in the UK as a spouse, civil partner or unmarried partner may benefit under this rule. It does not affect foreign nationals who have entered in a different capacity, such as students.

In order to qualify under the Rules, the applicant will have to show that the relationship has broken down permanently because of domestic violence, and that the couple was living together at the start of the probationary period. Qualification under the Rules also depends on the applicant producing one or more of the following forms of evidence that domestic violence has taken place:

  • an injunction, non-molestation order or other protection order made against the sponsor (other than an ex parte or interim order);
  • a relevant court conviction against the sponsor (such as for assault or other violent or threatening behaviour); or
  • full details of a relevant police caution issued against the sponsor.

Where a prosecution is pending against the sponsor, the applicant may be granted further periods of six months' limited leave to remain, subject to the same conditions, until the outcome of the prosecution is known. Pending a hearing for the grant of an injunction, non-molestation or other protection order, the application will be delayed until the outcome of the hearing is known.

It is often difficult for victims of domestic violence to produce the documentary evidence of violence described above, and there is often an unwillingness or insufficient evidence to take the matter to court. Where it is not possible to obtain police or court evidence of confirmation of domestic violence, the Home Office will accept evidence in the form of more than one of the following:

  • a medical report from a hospital doctor or GP who has examined the applicant confirming that the applicant has injuries consistent with being a victim of domestic violence;
  • an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence;
  • a police report confirming attendance at the home of the applicant as a result of a domestic violence incident;
  • a letter from a social services department confirming its involvement in connection with domestic violence; and/or
  • a letter of support or report from a specified domestic violence support organisation.

Where an applicant has suffered domestic violence from another member of the family, an application will be considered if this is the reason for leaving the partner and if the partner is unwilling to offer protection.

Sex workers

As with other victims of domestic violence, sex workers can fall into some or all of the vulnerable groups discussed in this document – they may have insecure immigration status, be a child, come from a minority ethnic background or have a disability.

Research shows that many sex workers have been abused as children and many misuse alcohol or other substances. Sex workers are one of the groups most at risk of domestic violence from a partner, particularly if, as in many instances, their partner is also their "pimp".

When dealing with cases of domestic violence where the victim is a sex worker, it is especially important that we make enquiries of the police to satisfy ourselves as far as possible that s/he is supported during the proceedings, as continuing with a prosecution against a "pimp" can be difficult and dangerous for the sex worker. Sex workers may also face repercussions from other "pimps" or sex workers. A key factor for sex workers considering whether to support a domestic violence prosecution against the "pimp" will be the arrangements made to ensure their safety.

It is possible that sex workers may already have experiences of the criminal justice system and that they may themselves have been defendants. Therefore, it is particularly important for them to be offered the chance to obtain support from, and talk things through with, someone from a specialist domestic violence organisation or an Independent Domestic Violence Adviser.

If a sex worker decides to withdraw the initial complaint, as with any complainant, the safety of the victim will be a primary consideration when deciding whether to continue the prosecution. We should seek information through the police from the sex worker or someone who knows the sex worker well and who can give an opinion on the risks attached to, for example, compelling the victim to give evidence.

5 'Intimate partner violence :How children affect the mother/victim's process'( Zink, Elder and Jacobson 2003)

6 'Group Work with Children exposed to Woman Abuse: a manual for practitioners, (Loosely et al 2004)

7 "Women's Mental Health: Into the Mainstream: Strategic development of mental health care for women" (Department of Health, 2002).

8 "Child witnesses to domestic violence: A meta-analytic review" (Kitzmann, Gaylord, Holt and Kenny, 2003).

9 'Reducing domestic violence…what works. Meeting the needs of children' (Mullender 2002) and 'Children's Perspectives on Domestic Violence' ( Mullender, Hague, Iman and Kelly 2002)

10 'Child witnesses to domestic violence: a meta-analytic review' Journal of Consultative Clinical Psychology (Kitzmann, Gaylord, Holt and Kenny 2003)

11 "Caregiver traumatisation adversely impacts young children's mental representations on the MacArthur Story Stem Battery" (Schechter, Zygmunt, Coates, Davies, Trabka, McCaw, Kolodji and Robison, 2007).

12 Domestic Abuse , BMA Board of Science ,2007

13 Domestic violence, sexual assault and stalking: findings from the 2004/05 British Crime Survey. Home Office Online Report 12/06

14 These are also special measures, being aids to communication, but they are unlikely to require a special measures application.

15 Romany Gypsies and Irish Travellers are recognised as racial groups for the purposes of the Race Relations Act 1976 (RRA). Other Gypsies and Travellers who are ethnic or national in origin may come within the definition of a racial group under RRA.

16The Trials Issues Group Agreement: Arrangements for the Attendance of Interpreters in Investigations and Proceedings within the Criminal Justice System. The Agreement reflects the introduction of the Human Rights Act 1998 and emphasises the requirement to check the competence of an interpreter.

17Women's Commission for Refugee Women and Children.

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9 - Support and safety of victims and witnesses

Providing support and protection for victims and witnesses of domestic violence is one of the most crucial aspects of domestic violence cases.
CPS staff should take all practicable steps to help domestic violence victims through the often very difficult – and potentially dangerous – experience of becoming involved in the criminal justice system.

CPS data shows that the greatest proportion of unsuccessful outcomes in domestic violence cases are due to victim issues (including victim retractions, witness intimidation, non-attendance at court and victims not supporting the prosecution case). But support for victims and witnesses should not necessarily start or stop at court. Instead, domestic violence victims need to be supported throughout the criminal justice process, from the point of charge, through the prosecution and after the case has been finalised. In that way, victims will be encouraged to participate in and support prosecutions, the likelihood of repeat victimisation will be minimised, and confidence in the criminal justice system will be increased.

Prosecutors should also be fully aware of the importance of working with the police, WCU and any specialist support organisations to prioritise the safety of domestic violence victims. The impact and dynamics of domestic violence make this a critical consideration (see Section 3).

The need to protect victims of domestic violence is reflected in the ACPO Guidance for Investigating Domestic Abuse (2008), which states:

"The first priority of the police in responding to a domestic abuse incident is to protect the victims and any other person at risk, including children and police officers."

Risk assessments

Risk assessments conducted by the police can provide invaluable background information for prosecutors. Prosecutors should therefore routinely request risk assessments from the police, and should consider these in every domestic violence case.

Prosecutors need to be aware that unless the risks faced by victims are reduced or counteracted by a series of proportionate interventions by multi-agencies an ineffective trial is the likely outcome.

ACPO Guidance on Investigating Domestic Abuse (2008) instructs police to carry out risk assessments in domestic violence cases to identify established risk factors. These risk factors include:

  1. The behaviour and circumstances of the suspect:
    • previous physical assault by the suspect;
    • revious sexual assault by the suspect;
    • escalation and severity of violence, including the use of weapons and attempts at strangulation;
    • child abuse by the suspect;
    • suspect's possessiveness, jealousy or stalking behaviour;
    • threats or attempts to commit suicide by the suspect;
    • threats or fantasies of committing homicide by the suspect;
    • previous criminality or breach of a civil/criminal court order or bail conditions by the suspect;
    • suspect's psychological and emotional abuse of the victim (including denial or minimisation of violence); and
    • suspect's misuse of illegal or prescription drugs and/or alcohol or mental health problems.
  1. The victim's circumstances:
    • victim's perception that they are at risk of future harm
    • current or imminent separation from the suspect and child contact disputes;
    • pregnancy of the victim;
    • disability and/or mental or physical ill health of the victim; and
    • social isolation and particular vulnerability of the victim.

In cases where there is an Independent Domestic Violence Adviser (IDVA) working with a high or very high risk domestic violence victim, the IDVA may be able to provide the CPS with further details on risk through the police. Where there is an IDVA, it is good practice for prosecutors to ask the police whether they have checked if the IDVA has any other relevant information about risk.

Multi-agency risk assessment conferences

Multi-agency risk assessment conferences (MARACs) are meetings attended by representatives of the agencies that have a role in protecting a victim in a particular case. The police or probation frequently take the lead role. The aims of the MARAC are as follows:

  • to share information to increase the safety, health and well-being of victims;
  • to construct jointly and implement a risk management plan that provides professional support to all those at risk and that reduces the risk of harm;
  • to reduce repeat victimisation;
  • to improve agency accountability;
  • to improve support for staff involved in high risk DV cases; and
  • to assess whether the perpetrator might be a risk to other individuals or to the general community.

The role of the MARAC is to facilitate, monitor and evaluate effective information sharing to enable appropriate actions to be taken to increase public safety. By sharing information, agencies can establish a better picture of victims' situations and can develop responses that are tailored to the needs and goals of individual victims and their children. Safe information sharing also allows agencies to manage the perpetrator in ways that reduce risk.

Referrals to MARACs will in practice often come from the police.

A key product from the MARAC process is the production and implementation of a multi-agency risk management plan. This should provide professional support to all those at risk, reducing the risk of harm and repeat victimisation.

The agencies invited to be part of the MARAC process should be any that have a role to play in the victim's safety. These may include:

  • A&E;
  • Adult social services;
  • Black and minority ethnic services;
  • CAFCASS;
  • children and young people's services;
  • drug and alcohol services;
  • domestic violence support services for victims;
  • education;
  • health visitors, school nurses and community midwives;
  • housing and/or homelessness services;
  • Independent Domestic Violence Advisers (IDVAs);
  • Lesbian, gay, bisexual and transsexual (LGBT) services;
  • mental health services;
  • police;
  • probation; and
  • sexual violence services.

The CPS is not represented at MARACs because it is seldom that we have any information that is not already known to the police. However, there is a need for the information discussed in the MARAC to be relayed to the CPS to inform the case. Additionally, if the prosecutor becomes aware of information that may alter the risk status of the victim - for example, information obtained at court, this should be relayed as quickly as possible to the police or IDVA.

Domestic violence cases may also be included in other local public protection arrangements, including Multi-Agency Public Protection Arrangements (MAPPA) (which focus on those convicted offenders who are assessed as posing the highest risk of serious harm) and Local Safeguarding Children Boards (LSCBs) (which seek to ensure the safety of children within families experiencing domestic violence). As with MARACs, prosecutors should make enquiries to find out whether any of the information discussed as part of these protection arrangements are of relevance to the criminal case.

Independent Domestic Violence Advisers (IDVAs)

In many parts of England and Wales, IDVAs have been introduced as part of a Government initiative to provide targeted professional support to high or very high risk victims of domestic violence. They prioritise their resources by focusing on those at greatest risk of harm. IDVAs work with clients from the point of crisis, that is, a police call-out or an Accident and Emergency attendance. They assess the victim's risk and tailor their service to respond to the level of risk the victim is experiencing. IDVAs work in a multi-agency setting and involve other agencies when required. They are trained to understand the value and legal requirement of information sharing and, as such, are integral to the Multi-Agency Risk Assessment Conference (MARAC) system.

An IDVA service should be independent of other agencies' agenda so that they can focus on safety and give impartial advice. However, they are part of the Coordinated Community Response to domestic violence and therefore recognise the value of bringing perpetrators to justice as part of this united effort to protect victims.

From a victim's perspective, the IDVA offers a main contact point through the many different agencies and processes they may need to access. The IDVA identifies sources of help and safety, explains different processes and supports victims to get the help they need both through their work with the victim and through their relationships with other agencies.

The IDVA can be a key point of contact for a victim who is a witness in a trial. Because of the independent nature of IDVAs, they can work with clients from the point of crisis, through the court process and after. This is important because the end of a trial is often not the end of the abuse or harassment.

Working with criminal justice agencies and Witness Care Units, the IDVA can also ensure that the victim stays informed throughout the criminal justice process (in accordance with local arrangements). They can also coordinate the protection of the civil and criminal courts to avoid a victim being left with no protection (for example, by ensuring a solicitor has been briefed so that a civil law order can be sought immediately after bail conditions cease to apply).

The Review of SDVCs added to the weight of evidence that IDVAs are invaluable to the criminal justice process and as part of the Coordinated Community Response to domestic violence. The Review found that witnesses are more likely to attend court if they are supported by an IDVA. Further evaluation is available at:

IDVAs can contribute to increased victim safety and satisfaction, reductions in repeat victimisation, victim engagement in the criminal justice system and increased reporting and support for children at risk of harm from domestic violence.18

Further information about the role of IDVAs can be found at:

www.caada.org.uk (Opens in a new window)


Independent Sexual Violence Advisers (ISVAs)

A network of Independent Sexual Violence Advisers (ISVAs) is also being rolled out across England and Wales as part of a Government package to provide targeted professional support to victims of sexual violent crime.

These advisers are generally based in Sexual Assault Referral Centres (SARCs) or specialist sexual violence voluntary organisations and link in with essential services such as victim and witness organisations, counselling and health, whilst ensuring the safety of the victim is co-ordinated across all agencies.

Sexual Assault Referral Centres

A Sexual Assault Referral Centre (SARC) is defined by the Home Office as:

"A one-stop location where victims of sexual assault can receive medical care and counselling whilst at the same time having the opportunity to assist the police investigation into alleged offences, including the facilities for a high standard of forensic examination."

Some police areas have established SARCs in premises away from police stations, usually in health service premises or buildings in residential areas. SARCs provide a dedicated, forensically secure facility, which is integrated with hospital services. They should be accessible 24-hours a day, seven days a week, enabling victims to obtain an appointment within four hours. They are usually provided by a partnership including the local police force(s) and health services, with close involvement of the voluntary sector. These centres have specially trained medical and counselling staff to deal with the victims of serious sexual offences.

SARCs also provide a confidential self-referral service whereby victims can attend the centre directly. In these circumstances staff at SARCs can give the victim the following four options:

  • report the matter to the police for investigation;
  • report the facts anonymously to the police for intelligence purposes;
  • secure and retain all necessary physical evidence samples for subsequent referral to the police, if that course of action is decided upon;
  • provide appropriate medical, psychological and counselling support for the victim.

Local domestic violence refuge, resettlement and outreach services

Local domestic violence services can offer women and children a range of community-based support and practical help with financial, legal, housing and benefit issues. These services may include advice centres, drop-in services, support in schools and youth services, counselling services, and group support for women and children.

For victims and children who need a safe place to stay, there is a national network of safe accommodation, specialist help and support (although specialist services may be limited in some parts of the country). Victims may go to a refuge in an emergency before returning home, or before planning to leave the violent partner. Provision of housing options, including Sanctuary Schemes, access to move-on accommodation and re-housing for those unable to stay in their homes, are vital. Refuge workers can also assess and manage risk and aim to increase the safety of women and children experiencing domestic violence. Specialist refuges are available in some parts of the country for women and children from Black and minority communities, including Asian, African, Jewish and Latin American, communities.

Women experiencing domestic violence can self-refer to local refuges or can be referred by other agencies, including police. Information on local refuge services can be accessed through the national domestic violence helpline run by Refuge and Women's Aid on 0808 2000 247 or through their websites (www.refuge.org.uk or www.womensaid.org.uk).

Similar provision exists in Wales via Welsh Women's Aid. They run a domestic violence helpline and can be contacted on: 0808 801 0800 or thorough their website (www.welshwomensaid.org)

The location of refuges or their telephone numbers should never be publicised or revealed to anyone other than the police. Most refuges have specific referral procedures to be followed, therefore the location should not even be given to victims, nor should the location be written down in records. This can be an important consideration when looking at bail conditions.

For those moving on from refuges or other temporary accommodation, resettlement services are available in many areas. Floating support services are housing-related domestic violence support services for victims of domestic violence, and are provided whilst staying in local authority temporary accommodation, in their own homes or after being re-housed following domestic violence.

Witness Care Units

Areas should have agreed local protocols outlining the responsibilities of the Witness Care Unit and the police specialist domestic violence unit to ensure that the victim has a single point of contact. Where the Witness Care Officer is the single point of contact, s/he will provide information and support to the victim from the point of charge right up until the conclusion of the case and will liaise with the Witness Service to arrange pre-trial visits. In some parts of the country, it may have been agreed that it is the police officer or IDVA's responsibility to keep the victim informed.

If it is planned that the IDVA should be the main point of contact for the victim who is a witness, there needs to be clear agreements between the IDVA and the statutory agencies with responsibilities under the Code (including the CPS). These agreements should set out how the IDVA will carry out their responsibilities while statutory agencies ensure that they discharge their responsibilities in the Code.

WCUs should also play a central role in the development of information sharing and risk assessment protocols. The relationship between an Independent Domestic Violence Adviser (IDVA) and the WCU is crucial to ensure a quick and thorough flow of information, minimise risk to the victim and maximise victim confidence in the criminal justice system.

Victim Support and the Witness Service

Victim Support, an independent charity, helps people cope with the effects of crime, providing free and confidential support and information. It works alongside the criminal justice system, Government agencies, national organisations and local communities. The Victims' Code of Practice requires the police to ask all victims of domestic violence if they would like to be referred to Victim Support for emotional support and practical help. Victim Support also receives self-referrals.

Victim Support services operate within national standards for managing and delivering services to victims and witnesses. It ensures that its volunteers reflect the diversity of all communities in which they work, and that its services are equally accessible to all.

A core part of Victim Support's service is to provide information and refer victims on to specialist services where appropriate.

The services of Victim Support may be provided by:

  • arranging for a trained volunteer to see victims in their homes, at the Victim Support local office, or if appropriate, at another place that is private, safe and convenient for the person being supported;
  • in many areas volunteers can be provided  that have been specially trained in the dynamics of domestic violence;
  • providing a volunteer to listen to the victim, support them and help them to explore their options. If help is required beyond the scope of Victim Support, such as accessing medical support or legal advice, Victim Support will assist in finding that help;
  • referring victims to other support agencies, if they want to use their services;
  • providing practical help including applying for criminal injuries compensation, providing support if the person wants to go to the police station, help with claiming benefits and access to crime prevention and a range of other services;
  • providing information which might include the victim's rights, and if they have reported the crime, finding out if there has been any progress in the case;
  • arranging support at court through the Witness Service (WS).

Victim Support also runs the Witness Service, which supports witnesses in every criminal court in England and Wales through a range of services that can complement the work of an IDVA, including:

  • pre-trial visits which give victims a chance to see the court and learn about court procedures before they are a witness in a trial;
  • a quiet place to wait;
  • someone to go with the victim into the court room when giving evidence;
  • arranging the use of separate entrances and waiting rooms (where possible);
  • provision and support around giving evidence in accordance with any special measures that have been ordered by the court (for example, giving evidence behind a screen or via a video link) for vulnerable or intimidated witnesses.

The Witness Service assists prosecution and defence witnesses, but not defendants.

For further information, see:

www.victimsupport.org.uk18 (Opens in a new window)

18 A.L. Robinson (2003), The Cardiff Women's Safety Unit: A Multi-Agency Approach to Domestic Violence.

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10 - Multi-agency, partnership working and specialist domestic violence courts

In order to tackle domestic violence effectively, we need to work in partnership with other agencies – both criminal justice and non-criminal justice – and voluntary sector organisations. This is the only way we can meet the full range of social, welfare, economic, safety, accommodation, criminal and civil justice needs of victims of domestic violence. The CPS cannot deal effectively and safely with the effects of domestic violence alone.

We are therefore committed to working nationally and locally within a multi-agency context to address domestic violence.

The Review of Specialist Domestic Violence Courts, Justice with Safety (2008), showed that those specialist courts with strong multi-agency partnerships were more successful in bringing perpetrators to justice. The Review also pointed to the importance of the equal participation of all partners, including those from the voluntary sector.

 

The SDVC Review emphasised the importance of a broad, coordinated community response (CCR),19 with the criminal justice system being just one element. Where the wider needs of victims, their children and particularly their safety were considered, alongside a determination to hold perpetrators accountable and ensure the court "performed" well, success was readily identifiable.

Good practice in this field involves CPS prosecutors working closely with their criminal justice and other statutory partners (such as local authority housing, social services and education departments, and the National Health Service), with voluntary sector service providers (including refuges and women's support and outreach projects) and Independent Domestic Violence Advisers(IDVAs) -where these exist. Partnership working has been identified as a hugely significant factor in affecting attrition rates, and improving victim participation, safety and satisfaction.

Strategic partnership working

CPS Areas should also be working in partnership with other agencies and organisations on a strategic level. Strategic partnership working on domestic violence may include, but is not limited to, the following:

  • establishment of local Service Level Agreements with the police and Witness Care Units together with agreements across the criminal justice system and with other statutory agencies and voluntary sector partners to develop methods of identifying and tracking cases and ongoing communication;
  • recognising the need for, and allocating time to establishing and participating in, operational multi-agency domestic violence partnerships this should include developing local domestic violence strategies and action plans with Local Criminal Justice Boards;
  • linking into the local Crime and Disorder Reduction Partnership domestic violence strategies and action plans, coordinating with LCJBs. For advice on better joint working in LCJBs and CDRPs on domestic violence, reference should be made to CDRPs (CSPs) and LCJBs: How to work together (OCJR, 2008)
  • developing local protocols for inter-agency working, including outlining the roles and responsibilities of each agency, encouraging the appropriate sharing of domestic violence data across partnerships  and keeping up-to-date these agreements;
  • ensuring, through local partnerships, strong links to IDVAs and any other specialist domestic violence services, including those working with diverse or minority communities;

Further advice on strategic partnership working on domestic violence can be obtained from the CPS Domestic Violence Implementation Team in the Equality and Diversity Unit.

Domestic Violence Coordinators.

Each of our CPS areas has a person who specifically coordinates domestic violence work within their area. They may be a Domestic Violence Coordinator (DVC) or may have other Violence Against Women strands within their portfolio. As well as ensuring that their area is correctly applying the Policy and Guidance the coordinator may also be involved in community engagement activities and other strategic work.

Domestic violence is often viewed as one of the most complex and challenging volume crimes to prosecute. In recent years we have seen tremendous advances in our approach to domestic violence throughout the organisation. The influence of DVCs within broader criminal justice and non criminal justice focused multi-agency partnerships is essential. It is important that DVCs have confidence in the significance of their position and their right to be involved in processes. Good partnerships work at both strategic and operational levels.

The majority of these partnerships are overseen by a by an individual based within the structure, also often, and sometimes confusingly known also known as a DV coordinator. Many of these reside within the local authority structure and can possess an array of titles. It is through this individual that the most helpful information can be found. DVCs should maintain strong links through this individual to ensure sound multi-agency working.

Whilst there a numerous advantages us to become involvement with the local domestic violence partnerships; two are crucially important. Firstly, all the evidence shows that to bring offenders to justice in these cases the power of the multi-agency approach must be brought to bear. An effective criminal justice system supported by specialised services and a responsive partnership makes the difference. Secondly, the impact of domestic violence and the problems inherent in every case are seen at first hand by the CPS. This knowledge and expertise is tremendously useful to the wider partnership and can be a powerful force for change.

Information sharing

Responsible information sharing plays a key role in enabling organisations and professionals to protect victims of domestic violence and their children and to save lives. Casework, advocacy, conducting risk assessments and providing general support and protection may all require information about individuals to be shared with other agencies.

ACPO has published: Guidance: Identifying, Assessing & Managing Risk in the context of Policing Domestic Violence. This can be found at:

www.acpo.police.uk (Opens in a new window)

The Home Office has published information and advice for practitioners who work with victims of domestic violence: Safety and Justice: sharing personal information in the context of domestic violence – an overview, which can be accessed on its website at:

www.crimereduction.homeoffice.gov.uk (Opens in a new window)

The ACPO Police/Family Disclosure Protocol: Disclosure of Information in Family Proceedings may also assist with information sharing. This can be found at:

www.dca.gov.uk/family/metpol-protocol.pdf (Opens in a new window)

We are sometimes asked to supply to third parties copies of documents held in prosecution files. The request might be made, for example, for the purpose of civil proceedings or by local authorities in child care cases. Detailed guidance can be found in the Legal Guidance on "Disclosure to Third Parties".

Disclosure to Third Parties

Where information is held by us, the duty to consider disclosing unused material to the defence under common law and the provisions of the Criminal Procedure and Investigations Act 1996 arises. Again, detailed guidance is available under "Disclosure of Unused Material".

Disclosure of Unused Material

Specialist Domestic Violence Courts

Specialist Domestic Violence Courts (SDVCs) represent a partnership approach to domestic violence by the police, prosecutors, court staff, the probation service and specialist support services for victims. Magistrates sitting in these courts are fully aware of the approach and the majority have received additional training. These court systems provide a specialised way of dealing with domestic violence cases in magistrates' courts. They refer to the approach of a whole system, rather than simply a court building or jurisdiction. Agencies work together to identify, track and risk assess domestic violence cases, support victims of domestic violence and share information better so that more offenders are brought to justice.

The SDVCs sit firmly within the broader Co-ordinated Community Response to domestic violence, which includes early intervention and prevention. This broad partnership approach, which extends beyond the criminal justice system, helps to provide a more complete solution for the victims and children who suffer from domestic violence and holds defendants accountable.

SDVCs have a number of core components. By ensuring that the SDVC system considers each of these components improvements are likely both in terms of successful outcomes for the criminal justice system and also from the victim's perspective. A summary of the components can be found at Annex B.

SDVC Review – Justice with Safety

Specialist Domestic Violence Courts Review 2007-08: Justice with Safety  was published in March 2008 outlining the findings of a review of the first 23 SDVCs (). For the purpose of the review, the SDVCs were measured against the 2005-08 CJS Public Service Agreements (PSAs) – bringing more perpetrators to justice; improving the support, safety and satisfaction of victims; and increasing public confidence in the criminal justice system.
In essence it confirmed that a multi-agency approach with the victim at its centre was most likely to be successful.

SDVC Programme Resource Manual

Guidance is available for use in those Areas that are planning, developing or running an SDVC system. The SDVC Programme Resource Manual was revised in March 2008 to reflect the best practice highlighted by the SDVC review. This Manual outlines the most up-to-date information on the components and can be found at:

 www.crimereduction.homeoffice.gov.uk/tvcp (Opens in a new window)

19 Further information on the Coordinated Community Response to Domestic Violence can be found on the Home Office website at:

www.crimereduction.homeoffice.gov.uk. (Opens in a new window)

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11 - Community engagement

Community engagement is a key component of our approach to domestic violence. This starts by providing basic information about us; through to the more active participation of communities to improve the way we work (for example, community groups being invited to contribute to staff training). Opening up the CPS and acting on input from diverse communities helps to inspire greater trust in us, which in turn can lead to greater confidence amongst witnesses and victims, and improved prosecution outcomes. At a local level, engagement can also contribute to the effective handling of cases and better victim and witness care. This is particularly important in cases of domestic violence.

For community engagement to be successful and effective, it needs to be done with a wide range of communities, including those whose needs may not have been traditionally addressed or those who historically have low levels of trust in the criminal justice system. These may include, but are not limited to:

  • lesbian, gay, bisexual and transgender (LGBT) groups;
  • Black and minority ethnic (BME) communities;
  • groups representing people with disabilities;
  • groups representing people with insecure immigration status;
  • different religious groups; and
  • groups representing people of different ages.

Where possible, community engagement on domestic violence should be targeted to address the specific experiences of diverse communities.

Hate Crime Scrutiny Panels are an excellent way of involving communities in monitoring our performance on domestic violence.

In relation to domestic violence, Areas should also:

  • ensure that Domestic Violence Coordinators and WCUs have access to up-to-date information on local communities, local demographics and local specialist domestic violence organisations. A national contact directory has been created and locally contact information should be kept up-to-date ;
  • consult local specialist domestic violence organisations in the development of domestic violence practices, protocols and service delivery;
  • set up operational links to domestic violence groups, especially those providing specialist support for victims;
  • work in partnership with local community groups, including those representing minority communities and those whose needs may not have been traditionally addressed. This may be, for example, through involvement with local domestic violence training;
  • work with local agencies in developing public awareness campaigns, media coverage and publicity on domestic violence; and
  • ensure that Area Communications Managers are kept informed of local initiatives and high profile cases at an early stage so that they can advise on publicity and media handling issues.

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12 - Case building

The ACPO Guidance on Investigating Domestic Abuse (2008) emphasises the importance of focusing efforts on gathering evidence in order to build a prosecution case that does not rely entirely on the victim's statement. Prosecutors may find it useful to refer to Section 4 of the ACPO Guidance, 'Investigation Development: Sources of Evidence'.

Where possible, cases should be constructed on the basis of evidence other than that of the victim. The police are aware of the need to gather evidence in this way and close liaison with them is essential.

When reviewing cases and deciding whether and how to proceed, matters to be taken into account should include the following:

  • effective and pro-active evidence gathering and case building (for example, using evidence such as res gestae);
  • any formal risk assessment;
  • the Victim Personal Statement, and if not on the file, information as to whether one was requested and consideration given to obtaining one if possible;
  • use of hearsay evidence (Chapter 2 of the Criminal Justice Act 2003);
  • the possibility of calling doctors/probation officers/voluntary agency supporters to provide information or give evidence as to fear etc.;
  • witness summonses;
  • measures and facilities available under the Youth Justice and Criminal Evidence Act 1999; and
  • use by victim or other agency of civil proceedings, information or evidence from other key agencies, for example, housing departments about requests for emergency accommodation or repairs to doors or windows etc.

For further advice on what a proactive approach requires, prosecutors should refer to the Evidence and Issues Checklist at Annex C and the CPS Aide-memoire on charging in domestic violence cases at Annex D.

Many Areas have Service Level Agreements or protocols with their local police forces regarding the quality of the evidence that should be provided in domestic violence cases. Prosecutors should find out whether these exist in their Area, and if they do, should be familiar with them. In this way, we will be able to provide appropriate advice to police officers in cases where the evidence is not complete.

Early consultation

In domestic violence cases, there must be full and early consultation with police to build the case together by exploring all avenues of investigation and evidence gathering.

Generally, the police should provide the following background information:

  • the ability and willingness of the victim to testify;
  • the history of the relationship, particularly if there has been violence and/or abuse in the past;
  • details of any civil orders made and whether there have been any breaches;
  • whether the suspect/defendant has made any threats since the incident;
  • details of any children of the family, including where they were during the incident and the impact of the violence on them;
  • the officer's view on the chances that the suspect/defendant will re-offend;
  • the current status of the relationship between the victim and the suspect/defendant;
  • the effect on the relationship of continuing with the prosecution against the victim's wishes;
  • the victim's view on their own and their children's safety if a prosecution does or does not follow;
  • whether counter allegations have been made;
  • information on whether the victim has been contacted by the suspect/defendant, his friends, relatives, or associates (either since the incident or post-charge); and
  • information from other agencies or organisations who are involved with the family.

Where the background information is inadequate, we should be proactive in requesting it from the police.

Consultation with the police should be face-to-face wherever possible.

Early consultations need not be restricted to cases where there is already an identifiable suspect or cases that pass the Threshold Test. They may take place in any case where the early involvement of a prosecutor would assist in the gathering of relevant evidence, the questions to be asked of suspects, any pre-charge court procedures and any strategy for a likely prosecution. A brief written record of the consultation should be made.

Where we consider there is not enough evidence to proceed to charge but that further evidence could be obtained, we should provide investigative advice, identifying all evidence that may be gathered to provide a realistic prospect of conviction, including the completion of a detailed action plan on the MG3.

Pre-charge activity

Upon receipt of an expedited report or evidential report, the case should be allocated to a prosecutor, who should:

  • create an MG3/3A and Action Plan with action dates;
  • check that the reverse of the MG11 is filled in and any related MG2 completed. The prosecutor should consider the needs of the victim when advising on charge. This should include the need to apply for special measures;
  • ensure that the case is properly flagged as a domestic violence case on CMS;
  • create a detailed review on CMS to refer to all relevant issues from the Advice/Review Checklist; and
  • consider unused material, especially potential third party material (detailed guidance is contained in the legal guidance chapter on "Disclosure of Unused Materials").

Upon receipt of such a case any decision to take No Further Action or to charge a lesser offence must be agreed by a senior lawyer, experienced in domestic violence cases.  A Direct Communication with Victims letter must be sent to the complainant in accordance with the Code of Practice for Victims of Crime which should include an offer of a meeting in appropriate cases.

Charging

Charging decisions in domestic violence cases are made by prosecutors. All alleged offences of domestic violence are to be referred to duty prosecutors or CPS Direct once the Threshold Test has been met. We will need to satisfy ourselves that evidence has been or is being effectively gathered and that the MG2 and MG11 will include sufficient details to enable witness care issues to be comprehensively assessed. We should refer to the Director's Guidance on Charging for further information. The 2008 ACPO Guidance on Investigating Domestic Abuse outlines the background information to be provided by the police on prosecution files, and forms the substance of most local Service Level Agreements (SLAs).

When giving advice on domestic violence cases, we should ensure that we have available (in addition to other legal resources) the updated domestic violence Policy and Guidance, The Code for Crown Prosecutors, the CPS Aide-memoire on charging cases of domestic violence, any appropriate charging standards and the ACPO Guidance.

The Aide-memoire on charging cases of domestic violence referred to above can be found at Annex D. This sets out the main issues relevant to charging cases of domestic violence, with an emphasis on the importance of proactive case-building and support for victims and witnesses.

All available charges should be considered, including charges for breach of non-molestation orders and offences under sections 2 and 4 of the Protection from Harassment Act 1997. We should actively consider as wide a range of appropriate charging options as possible in accordance with The Code.  The charges selected should reflect the seriousness and extent of the offending, give the court adequate powers to sentence and impose post-conviction orders, and enable the case to be presented in a simple and clear way. Annex E outlines an interpretation of domestic violence offences.

The charging decision must be recorded on the MG3/3A on CMS, and must set out which of the Threshold Test or Full Code Test applies. The detailed review on CMS must include a list of the authorised charges and refer to all relevant issues from the Advice/Review Checklist.

We must agree with the police a realistic timescale for receipt of evidence and preparation of case papers. The timescale must be recorded in the Action Plan.

Simple cautions

Cautions are rarely appropriate in domestic violence cases. This position is in accordance with the ACPO Guidance on Investigating Domestic Abuse. This is because such cases involve a breach of trust and are unlikely to be the first offence. Generally, the public interest will require the prosecution of the suspect where there is sufficient evidence for charges to be brought.

The 2008 ACPO Guidance states:

"Cautions should be considered as an appropriate disposal only when:

  • There is some evidence that it is a first domestic abuse offence and there have been no other reports or intelligence of previous abuse to the victim or previous partners or family members;
  • The defendant has no previous police record for violence;
  • The case has been reviewed by the CPS and they have taken the decision not to progress a prosecution;
  • The investigation has been reviewed and the officer in charge (OIC) is satisfied that there is no further potential for investigation development;
  • Any other possible criminal justice sanctions have been examined and progressed."

A custody officer may determine that a caution is appropriate in a domestic violence case without referring the case to us if s/he is satisfied that the Full Code Test evidential standard is met. Additionally, the custody officer must be satisfied that the public interest can be adequately met by the administration of a caution.

The cautioning for indictable only offences is highly unlikely to be in the public interest and should not be approved if referred to the CPS. Any cautioning for such an offence will be of no effect and is highly likely to attract strong criticism.

Conditional cautions

Part 3 of the Criminal Justice Act 2003 makes provisions for offenders to be diverted from the courts by issuing them with a conditional caution.

As stated clearly in the Director's Guidance on Charging, domestic violence cases may not be considered for conditional cautioning. It has been agreed at a high level across Government that there are both principled and practical reasons for excluding cases of domestic violence from the remit of the conditional cautioning scheme

The main reasons against conditional cautions in domestic violence cases are as follows:

  • diversion from the courts could be seen as minimising the seriousness of domestic violence and consequently undermine public confidence;
  • conditional cautions do not allow for the sophisticated risk assessment required in domestic violence cases;
  • conditional cautions are usually recommended for minor and/or isolated incidents. Research indicates that the majority of domestic violence incidents are not isolated and there will usually have been numerous incidents before the police are involved;
  • the conditional caution disposal is inconsistent with CPS and ACPO policy and guidance on domestic violence, which prioritise prosecution where the necessary evidence exists.
  • the fact that family members are involved is an aggravating factor that takes even minor assaults beyond the diversion threshold (all the more so if any incidents occur in the presence of a child);
  • research shows that perpetrators of domestic violence are highly skilled at minimisation, so expressions of remorse that are truly genuine may be difficult to identify;
  • perpetrators of domestic violence also abuse victims using power and control techniques. The victim's willingness to support a conditional caution might not truly be their wish but rather that of the perpetrator. Even if truly their wish, it may not be the safest option for them or their children;
  • concerns about the lack of capacity of existing perpetrator programmes; and
  • domestic violence cases are not susceptible to the sort of expedited handling by charging lawyers that it was hoped would characterise conditional cautions generally.

Bail

Our primary concern is the safety of the victim and any children. We look to the police (and through the police, to IDVAs and other specialist support organisations, where relevant) to supply us with sufficient information, including the victim's views, to help us make our decisions.

We should refer to the legal guidance on "Bail" for detailed information.

Bail

;

Use of pre-charge bail

Early consultation between ourselves and the police in domestic violence cases allows us to advise the police about the direction their enquiries should take. In this way, the prosecution team can build and strengthen the case together.

There may be clear lines of enquiry outstanding, including medical evidence and other key witness statements. If so, in the absence of a clear need for a remand into custody, the suspect should be bailed whilst the investigation continues. Prosecutors should record this early advice in action plans, with action dates for completing the enquiries. The police are now able to impose conditional bail if the suspect is released on bail to return to the police station in much the same way that they can impose conditional bail once the defendant has been charged.

The police should obtain the views of the victims and witnesses when imposing conditions to ensure that the victim is not exposed to increased risk as a result of any conditions imposed.

Prosecutors who are asked to make a charging decision must make sure that they have sufficient information. The decision to charge (except in Threshold Test cases) or to take no action should be made on the basis of an evidential file. Throughout, we need to be aware of the requirement to deal with cases of domestic violence as expediently as possible. Delay can jeopardise the safety of the victim and the victim's family and may also result in the victim's withdrawal of support. Serious consideration should be given to expediting such cases.

Post-charge bail

The police will make the initial decision whether to bail a defendant to attend court or to keep the defendant in custody. If the defendant is refused by the police the decision will be revisited by the court as soon as practical able.

Victims of domestic violence may be afraid of what will happen to them once a defendant is charged. To protect victims and witnesses from the risk of danger, threats or repeat offences, we may ask the court to impose conditions on the bail or may ask for the defendant to be remanded in custody. The court can only agree if we can show that there are substantial grounds for not granting bail as set out in the Bail Act.

It is vital that the CPS gets as much information about the offence, the effect on the victim and any fears or concerns that the victim may have about repeat offending or intimidation. Normally, the police will supply such information with the case file, but we need to be proactive to ensure that every effort is made to protect vulnerable victims or witnesses by seeking confirmation or further information about any views or concerns expressed by the victim or any witnesses.

A victim may have expressed concerns in a Victim Personal Statement about the effect the crime has had on them and may have raised particular issues about bail in such a statement. These must be taken into account when making our recommendations to the court about bail.

Bail conditions

It is the defendant who is subject to bail conditions, not the victim. Care should be taken when formulating bail conditions to ensure that the victim retains as much freedom of movement as possible by curbing the ability of the defendant to approach or intimidate the victim at home, work or on the way to family, school, shopping etc.

The court should be encouraged to make it clear to defendants that bail conditions apply to them, not victims, and that any breaches will be taken very seriously. Magistrates will, of course, be aware that it is for the family court to make arrangements regarding child contact and generally it should not be a matter to be considered within a bail hearing.

It is important that any changes to the bail conditions or custody status of a defendant are communicated to victims, either by the police or by the CPS in accordance with local arrangements. Advocates must satisfy themselves that they are familiar and comply with local arrangements for notifying victims promptly of the remand status of the defendant. If no system exists, urgent consideration should be given to creating a speedy system in consultation with the police, IDVA and Witness Care Unit to ensure the safety of the victim.

Applications to vary bail

We should insist that the defence gives proper notice of any application to vary bail in order that enquiries can be made of the victim to seek views and check whether any court orders already exist or are pending. This is especially important when the defence try to raise such an application without notice at court.

Where the proposed variation concerns child contact, we should be aware that we rarely have the necessary information or training to deal with this – family courts do, along with CAFCASS, Local Safeguarding Children Boards, Social Services and specially trained benches. Contact with a child may permit opportunities to intimidate the child and/or victim and in the worst cases can result in murder or suicide.

Preparing and managing the case

Upon receipt of the full evidential file, a full file review should be drafted by the allocated prosecutor and recorded on CMS. We should:

  • draft and forward to the police a further Action Plan (if required);
  • review the unused material;
  • serve prosecution evidence in accordance with court's directions;
  • supply initial disclosure and update the disclosure record sheet;
  • prepare special measures applications, bad character applications and hearsay applications as necessary;
  • brief an appropriate advocate (and ensure that they are familiar with the CPS Policy for Prosecuting Cases of Domestic Violence);
  • prepare Instructions to counsel to include all relevant issues from the Advice/Review Checklist;
  • arrange to hold a conference with trial counsel, the investigating officer, and any expert witnesses as soon as possible. Ensure a record is made of any conference, including those held at court;
  • coordinate any special measures meeting to enable counsel to meet the witness;
  • consider the defence statement and any actions required, or chase defence and advise court if none received;
  • copy defence statement to police with Action Plan;
  • supply continuing disclosure letter;
  • liaise with the Witness Care Unit over the outcome of any special measures application and pre-court familiarisation visit, and ensure that the victim is updated on progress;
  • address any victim/witness concerns; and
  • check that an updated Victim Personal Statement has been served on the defence and court.
  • Ensure that they balance the implications of delaying the case (to obtain further evidence) with the need to deal with cases involving domestic violence as expeditiously as possible.

Case review

In cases of domestic violence there is a particular need to ensure that we are kep. informed of the victim's current view regarding the prosecution through witness and victim personal statement(s), or through links with Witness Care Units, and any local specialist services (such as IDVAs). This is because of the safety issues for the victim and any children and also because the victim is usually the main witness.

Full and timely information is required to enable proper and continuous review. We will need to consider not just the incident in question, but the totality and long term context of any domestic violence suffered by the victim and any children of the family and inflicted by the defendant. Some defendants will have perpetrated domestic violence in more than one of their relationships. Information of this nature will always be relevant to us when reviewing the case and in some instances it may amount to admissible evidence.

Domestic violence victims are particularly vulnerable to intimidation, due to the access to them and knowledge of them that the defendant has. In progressing a domestic violence case, we should always balance:

  • the need for the case to be commenced and concluded as quickly as possible, in order to minimise opportunities for intimidation and withdrawal of the victim's support; and
  • the need for further enquiries to be made and evidence collated.

Special measures

Many victims and witnesses of domestic violence experience stress and fear during the police investigation of a crime and the process of attending and giving evidence to a court. Stress affects the quantity and quality of communication with witnesses of all ages. In particular, victim's often fear having to face their attacker in the courtroom or may even refuse to be in the same room as the defendant. In such circumstances, where victims and witnesses are held to be vulnerable or intimidated, special measures can improve the quality of their experience by allowing them to give the 'best evidence' they are capable of.

Furthermore, certain witnesses have particular difficulties attending court and giving evidence due to their age or personal circumstances, or because of their particular needs or their fear of intimidation.

Part II of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as "special measures".

Full Legal Guidance on Part II Youth Justice and Criminal Evidence Act 1999 is available under "Special Measures".

Special measures

 

In addition to special measures, the YJCEA 1999 also contains the following provisions intended to enable vulnerable or intimidated witnesses to give their best evidence:

  • mandatory protection of witness from cross-examination by the accused in person (sections 34 and 35): an exception has been created which prohibits the unrepresented defendant from cross-examining vulnerable child and adult victims in certain classes of cases involving sexual offences;20
  • discretionary protection of witness from cross-examination by the accused in person (section 36): in other types of offence, the court has a discretion to prohibit an unrepresented defendant from cross-examining the victim in person (an application can be made by the prosecutor or the court can raise the issue of its own motion);
  • restrictions on evidence and questions about complainant's sexual behaviour (section 41): the Act restricts the circumstances in which the defence can bring evidence about the sexual behaviour of a complainant in cases of rape and other sexual offences; and
  • reporting restrictions (sections 44 to 46): the Act provides for restrictions on the reporting by the media of information likely to lead to the identification of children under 18 and certain adult witnesses in criminal proceedings.

Self defence and Counter Allegations

In domestic violence cases, we should be alert to the fact that there may be sharply conflicting accounts of what has taken place, with each party claiming to be the victim. The defendant may make a counter-allegation or argue that s/he acted in self defence.

In cases where a counter allegation has been made, police officers are instructed to conduct immediate further investigation at the scene (or as soon as is practicable) to attempt to establish the primary aggressor and to assess whether the victim may have been justified in using a reasonable level of force.

When there are counter allegations, police officers should have noted and recorded the following information:

  • the comparative severity of any injuries inflicted by the parties;
  • whether either party has made threats of future harm to others (including children, other families, or other members of the household);
  • any prior history of violence by either party;
  • any previous counter allegations by either party and the results of those allegations; and
  • whether either party acted defensively to protect himself or herself or a third party from injury.

It may also be useful to ask the police for the views of the first officer at the scene and the investigating officer.

Where self-defence is raised, we should request from the police as much of this information as is appropriate, especially if considering discontinuing the case because of insufficient evidence.

Counter allegations may give rise to difficulties in prosecutions, particularly as instances where the defendant alleges that the victim is the abuser may end up being used as the basis of bad character applications against the victim (section 100 of the Criminal Justice Act 2003 allows for the bad character of any witness to be admitted, subject to certain conditions). As noted above, there will need to be a thorough investigation of such claims to ensure that factually incorrect or misleading information is not put before the courts.

Acceptability of pleas

We should consider the following factors when deciding whether or not to accept a plea to a lesser offence or a plea to one of a number of offences in a domestic violence case:

  • whether the defence offer a plea that is in accordance with the evidence available to the prosecution;
  • whether it would be advantageous to the victim and any children not to have to give evidence;
  • the victim's views on the pleas offered (some victims would prefer to give evidence rather than accept a reduced plea);
  • whether the plea fetters the discretion of the court in relation to sentencing;
  • whether the difference between the prosecution and defence version of events is such that it would significantly affect the sentence that would be imposed (if it is, there should be a Newton hearing to determine the facts); and
  • the fact that defendants will often seek to minimise the offence or give mitigation for their offence.

Where we and the defence have agreed to a plea on a limited basis, the basis should be put into writing and signed by both parties.

Prosecutors should refer to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise for further information:

Victim's view and the public interest

The Code for Crown Prosecutors requires us to "take into account the consequences for the victim of whether or not to prosecute and any views expressed by the victim or the victim's family".

A key feature of domestic violence cases is the difficult task of balancing the victim's wishes against the public interest. However, individual acts must be put in the context of the wider social picture.

It is often difficult to achieve the right balance between what is seen by some as empowering and by others as burdening the victim with the "responsibility" for the prosecution. On the one hand, it is our decision whether or not to proceed with any prosecution and this may be a relief to some victims. On the other, some victims of domestic violence feel that they are continuing to be "controlled" and have no influence over what is to happen to them and their families. We need to be alert to these issues and aware of the views of the victim at each stage of the process. The availability of support from a specialist domestic violence agency or an Independent Domestic Violence Adviser will often be invaluable in these situations.

Victim's withdrawal of support for the prosecution

A victim may withdraw support for the prosecution for a number of reasons. These may be to do with:

  • a lack of resources or access to resources (for example, a lack of financial resources preventing the victim from leaving the relationship, a lack of alternative home meaning the victim will be homeless if she leaves, a lack of legal immigration status);
  • the defendant's behaviour (for example, violence increasing upon separation, making excuses and minimising his violence, threatening to harm or take the children if the victim leaves, telling the victim that s/he is worthless and no one else will have her);
  • other people's behaviour (for example, family and friends abandoning the victim, children pressuring the victim to stay, family and friends blaming the victim for the violence, criminal justice agencies treating the victim unfairly); and/or
  • the victim's beliefs and/or mental state (for example, hoping the violence will stop, not wanting to feel responsible for breaking up the family, suffering from low self-esteem, still loving the defendant, holding religious beliefs that prevent her from leaving the marriage).

A lawyer with experience in domestic violence issues, should be consulted in any case where the victim indicates a wish to withdraw support for the prosecution.

In these cases, consideration should be given to:

  • first, whether it is possible to proceed without using the victim's evidence, for example, using evidence other than that of the victim or by making an application under section 116 of the Criminal Justice Act 2003;
  • secondly, investigating whether the victim will proceed if special measures or other forms of support (for example, from an Independent Domestic Violence Adviser) could be provided;
  • thirdly, issuing a summons and compelling the victim to give evidence; and
  • fourthly, discontinuing the case as a result of the victim withdrawing support for the prosecution.

The police must be asked to provide a withdrawal statement, as there cannot be an informed decision about the next steps without it. A withdrawal statement should include:

  • confirmation of whether the original statement given to the police was true (if the account given in the original statement has to be amended, an explanation for this should be included);
  • whether the victim has been put under pressure to withdraw;
  • the nature of the original allegation (if not fully covered in a previous statement);
  • the victim's reasons for withdrawing the allegation;
  • details of those with whom the victim has discussed the case – particularly anyone who has advised them (a solicitor, for example);
  • whether any civil proceedings have been, or are likely to be, commenced; and
  • the impact on the victim's life and that of any children if the case is continued.

Withdrawal statements should be accompanied by a background report by the officer in the case. This should contain (without duplicating the withdrawal statement):

  • the officer's views on the case, including the veracity of the statement, any suspicions of witness intimidation or pressure (if not already included in the withdrawal statement), and a general assessment of the reasons given by the victim;
  • views on how the case should be dealt with, including proceedings against the victim's wishes;
  • how the victim might react to being compelled to give evidence; and
  • details of any identified risks to the safety of the victim, children or any other person;
  • details of the support available to the victim (for example, access to an IDVA or any other support organisation);
  • whether any voluntary sector support organisation or IDVA has expressed a view; and
  • the likely impact on the victim and any children of proceeding or not proceeding with the case.

As a result of the police officer's report, we may need to consider whether further charges, for example, witness intimidation, are appropriate.

In cases where victims assert that the original complaint was false, the victim may risk facing charges of wasting police time or attempting to pervert the course of justice. Such a statement may also have an adverse effect on their credibility in future cases. Victims of domestic violence are often put under pressure to withdraw their statement by the defendant, their friends and family, and the victim's own friends and family (including children). Given those pressures, statements of this nature need to be thoroughly investigated by the officer in the case, including enquiries made of the IDVA, where one is involved.

Decisions to prosecute victims in these circumstances should be taken by experienced prosecutors who should seek the views of the all those involved with the victim including: the officer in the case; IDVA; or social services in order to ascertain the true picture.

Support for victims at this stage is crucial. It may therefore be appropriate to ask the police to offer the victim the services of a specialist support organisation, if this has not already been offered.

We should assess at an early stage whether there is sufficient evidence to proceed without the victim, for example, the 999 tape, admissions in interview, CCTV and police officers' statements. If there is, and providing the public interest test continues to be met, there may be no need to consider a witness summons if the victim subsequently withdraws support.

We will also need to consider any Victim Personal Statement. There can be advantages to victims making these where victims state that they do not support the prosecution so that it is clear to the court – and the defendant – that the decision to proceed rests with the CPS.

Where we are considering proceeding against the victim's wishes, we must consider all parties' human rights (including children's) and endorse fully and clearly the decision making process on file.

Witness summonses

Section 169 of the Serious Organised Crime and Police Act 2005 allows the court to issue a summons if it considers it to be in the interests of justice to do so.

Before a decision to issue a summons is taken, we must make enquiries to satisfy ourselves, as far as possible, that the safety of the victim and any children will not be endangered by our decision. Through the police, we should check that the victim has been made aware of available specialist support and whether it has been offered and accepted or declined (this should be reported on COMPASS). Police and specialist support services (including Independent Domestic Violence Advisers) should be asked to advise on their assessment of the victim and any children's safety. Information shared at Multi-Agency Risk Assessment Conferences (MARACs) in higher risk cases will also be invaluable.

A summons should only be considered once it has been determined that (a) the victim will not give evidence, even with the help of special measures and other support; and (b) the case cannot proceed without the participation of the victim; and (c) the safety of the victim and ay children will not be jeopardised by the case continuing.

Summonses will be appropriate in some circumstances and can be very successful. They can support victims and assist their attendance at court by 'removing' the pressure of making that decision from them. Where a witness attends as a result of a summons, there is often a guilty plea. However, it is also possible that a witness will still not attend, or may come to court but refuse to give evidence. Table 1 sets out the factors that will tend to either support or not support the decision to issue a witness summons.

We should ensure that the summons is served properly, and local Service Level Agreements should ensure conduct/service money is provided when it is served.

If going ahead with the prosecution against the
victim's wishes, consider the following and any
combinations: 21

Summons more
desirable

Summons less
desirable

The seriousness of the offence in the context of that case:
1. Serious offence
2. Minor offence and isolated event

 

 

 

Victim's injuries (including psychological):
1. Serious injuries
2. No or minor injuries

 

 

Use of a weapon

 

Any subsequent threats by defendant

 

Whether attack planned

 

Whether incident witnessed (seen or heard) by children

 

Whether offence committed in presence of, or in close proximity to a child

 

Effect (including psychological) on any children living in the household

 

Recurrence likely

 

Threat to the health and/or safety of the victim or any other person involved

 

Pregnancy

 

Current state of victim's relationship with defendant:
1. Further incidents
2. Relationship assessed as "unstable"
3. No divorce proceedings
4. No further incidents
5. No further police call-outs
6. No ongoing civil proceedings
7. No history of a volatile relationship

 



 

 

 




History of relationship:
1. Violent relationship and/or pattern of offending

 

 

Defendant's criminal history (particularly if previous violence)

 

Information from any other agencies supporting proceeding, e.g. Social Services, Housing, Health, Women's Aid, voluntary sector (including perpetrator services) etc.

 

Witness warrants

If a witness refuses to attend as a result of a summons, we must go on to consider whether a warrant is appropriate. The decision to seek a witness warrant is separate from the decision about whether or not to seek a summons. For example, in situations where the victim cannot be seen to support the prosecution process in any way, but does want the case to continue, then a summons may be appropriate.

Warrants should not be automatically applied for. The intention of obtaining the warrant should not be to penalise or criminalise victims, but to assist their attendance at court. Applications for warrants should be made on a case by case basis after consultation with a lawyer experienced in domestic violence issues. Obviously, if the incident involves a serious assault, escalating violence or other aggravating features outlined in Table 1 above then it is more likely that a warrant will be requested than if it is a minor isolated incident. Throughout the safety of the victim and any children should be borne in mind.

An additional factor militating against seeking a witness warrant is the fact that it could deter the victim from seeking help in the future, thereby jeopardising the future safety of the victim and any children. Arresting a victim also may also have the effect of 'criminalising' the victim, and may have a detrimental effect on the quality of the victim's evidence.

Deciding to discontinue

If an experienced lawyer has considered whether it is possible to proceed without the victim, decided that it is but that it would not be right to do so in the particular circumstances, the case should be discontinued. These cases will be rare and should be marked as discontinued for failing the public interest test.

Where it is not possible to continue without the victim and the decision is made not to compel attendance, again the decision to discontinue is on public interest grounds.

Bind overs

Bind overs are usually inappropriate in domestic violence cases. However, where the victim withdraws support for the prosecution and all avenues for continuing the case have been explored and discounted, a bind over may be an acceptable last option. Although, it is not a criminal conviction, it can provide some future protection for the victim. However, bind overs should not be routinely used and should be viewed as a last resort.

Victim Personal Statements

A Victim Personal Statement (VPS) is a statement made by a victim of crime explaining the effect that the crime has had on him or her.

The purpose of the VPS is to:

  • give victims an opportunity to state how the crime has affected them – physically, emotionally, psychologically, financially, or in any other way;
  • allow victims to express their concerns in relation to bail or the fear of intimidation by, or on behalf of, the defendant;
  • provide victims with a means by which they can state whether they want information about, for example, the progress of the case;
  • provide victims with an opportunity to state whether they want to claim compensation or request support;
  • give victims an opportunity to mention their support or absence of support for the prosecution;
  • provide the court with additional information that it can use at sentence, for example, in respect to the conditions to be imposed in a restraining order or as part of a generic community order; and
  • provide criminal justice agencies with a ready source of information about how the particular crime has affected the victim involved.

In domestic violence cases the statement can be an important way to empower the victim. Through the statement the true impact of the cases can be relayed to the court. It can also be an opportunity for the victim to set out any conditions that would enhance the safety of the victim and any children post sentence. Depending on the nature of the charges before the court or the sentence imposed the court maybe able to incorporate these conditions into the defendant's sentence for example through a restraining order or by imposing further conditions as part of a community order

Sentencing

We need to be aware of our duties in relation to sentencing issues, particularly with regard to appeals, potentially unduly lenient sentences (ensuring they are cognisant of recent sentencing case law) and correcting derogatory defence assertions. We should also highlight domestic violence as an aggravating feature.

We can and should guide the court in relation to ancillary orders available (such as anti-social behaviour orders, exclusion orders or restraining orders) and draw attention to relevant cases. Applications for compensation should be made, where appropriate, bearing in mind that where the parties remain together such orders will probably be met from family money.
For further guidance

Antisocial behavior orders

 

Briefing and instructing agents and counsel

Staff will need to ensure that agents and counsel instructed by the CPS are familiar with the CPS Instructions for Prosecuting Advocates (revised in 2007) as well as the CPS Policy and Guidance on Prosecuting Cases of Domestic Violence.

Agents and counsel must be made aware that decisions relating to acceptability of pleas and issues affecting witnesses' attendance at court (including compelling their attendance) must be referred to CPS staff.

20 The Justices' Clerks' Society has produced Guidance on Court Appointed Legal Representatives under Sections 34-40 Youth Justice and Criminal Evidence Act 1999. The guidance is aimed at court staff and defence practitioners, and is intended to encourage the early identification of those cases where there will be potential issues of cross-examination by a defendant-in-person, and to clarify the scope of payments to be awarded from central funds. It has been approved by the Ministry of Justice, and is available to CPS staff on request from CPS Policy Directorate.

21 A combination of factors may be present which may make a summons more or less desirable. Options must be balanced. Even a seemingly minor incident , maybe serious in the context of escalating violence.

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13 - Training

All prosecutors, associate prosecutors and caseworkers received training on domestic violence between 2005 and 2008.

New members of staff should be trained as and when there are sufficient numbers in each Area or Group to justify doing so. There is a new format for training. Staff are required to complete Modules 1 and 8 as pre-course learning. Once completed they are then required to attend a one-day Proactive Prosecutor Programme style case-based training programme. Members of staff who have been trained can also use Module 8 to refresh their memories.

There are now two training programmes for domestic violence: a revised version of the traditional training programme that was used to train all prosecutors, associate prosecutors and caseworkers in 2007-08, and a Proactive Prosecutor Programme style case-based training programme.

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14 - European convention on human rights issues

The European Convention on Human Rights (ECHR) was incorporated into UK law by the Human Rights Act 1998.

ECHR issues:

  • affect the way in which the police conduct their investigation;
  • affect CPS decisions to prosecute or not to prosecute – particularly when the victim withdraws support for the prosecution; and
  • affect the manner in which we decide to conduct the case.

 We should be used to considering the impact of ECHR issues on both the defendant's and victim's rights within criminal proceedings generally. Given that many domestic violence cases involve repeat incidents and/or close personal relationships, and children, particular ECHR issues arise for consideration.  A victim of domestic violence has rights under, for example, Articles 2, 3, 6 and 8, as would any children of the family.

The rights of the victim, any children, the public (in the narrowest as well as widest sense, for example, including extended family or neighbours) and the defendant have to be balanced.
Prosecutors should refer to the guidance on "Human Rights" for further information.

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15 - Criminal legislation

This section covers the criminal legislation most relevant to domestic violence. Prosecutors should note that not all of the provisions below are yet in force.

Youth Justice and Criminal Evidence Act 1999

The rules governing special measures and reporting restrictions are set out in the Youth Justice and Criminal Evidence Act 1999. Further details can be found in Section 16 and at:

Special measures

 

Protection from Harassment Act 1997

This legislation was brought into force on 16 June 1997.

The Protection from Harassment Act 1997 introduced four new criminal offences:

  • harassment (section 2): summary only, six months' imprisonment and/or a level 5 fine;
  • fear of violence (section 4): either way, five years' imprisonment and/or a fine on indictment; as above summarily;
  • breach of civil injunction (section 3(6)): either way, same penalty as section 4 offence; and
  • breach of restraining order section 5(5): either way, same penalty as section 4.

 

Additionally, a new civil tort of harassment was created by section 3.

One of the main benefits under section 5 of the Act, the Crown Court and the magistrates' court can make a restraining order on conviction, prohibiting the defendant from doing anything described in the order, for the purpose of protecting the victim from further harassment or fear of violence.

 

Further guidance can be found at:

Harassment

 

Prosecutors should be aware that certain acts carried out by a defendant may be construed by the victims as witness intimidation. These acts may fall short of the legal definition. For example, if there is no evidence to conclude that the defendant intended his actions to interfere in the course of justice. The defendant's action however, may come within the definition of harassment and serious consideration should be given to this charge, not least, because such a conviction would allow for the imposition of a restraining order.

Prosecutors should actively consider charges under sections 2 and 4 where circumstances permit and should examine as wide a range of appropriate charge options as possible in accordance with the Code.

Restraining orders

Under section 5, both the magistrates' courts and the Crown Court can make a restraining order on conviction, to protect the victim or any other person mentioned in the order from further conduct which amounts either to harassment or causing fear of violence.

Variation or discharge of restraining orders

Under section 5(4), the prosecutor, the defendant, or any other party mentioned in the order may apply for variation or discharge of restraining orders. Variation is not defined, but Home Office Circular 34/1997 makes it clear that variation can include extending the duration of the order.

We clearly have a post conviction role in assisting victims where variation is sought. It will therefore be necessary to retain papers where restraining orders are made, until the order ends or is discharged. Local liaison will be needed with the police to ensure that systems are in place to arrange for variation applications to be made.

Prosecutors may wish to discuss the terms of orders in advance with the defence, so that wherever possible, arrangements can be reached. Indefinite orders will ensure that victims are adequately protected for the foreseeable future, but some courts may be reluctant to make such orders. In those cases, the prosecution should consider making an application for variation, towards the end of an order, to extend it. Case papers should be retained at least until the expiry of the order.

It is important that the terms of orders are clear, but not so prescriptive as to allow alternative forms of harassment. Geographical limitations, such as staying 300 yards away from the victim, should be suggested with care. Difficulties could arise in proving distances should there be a breach, and harassment may be possible from 301 yards. The order is not a punishment, but a protection against future offending.

Restraining orders should also be considered where the defendant receives a custodial penalty, as it is possible to harass or cause fear of violence from prison through the use of telephones, letters or third parties. The prison can be informed of the existence of an order by the police. The order can also exceed the custody period.

A defendant may seek to make repeated applications for variation to harass the victim. In such cases, we should remind the court of its powers to control abuse of its process. Victims should be informed of applications to vary, and asked to express their views and to attend if necessary.

Female Genital Mutilation Act 2003

The Act came into force on 3 March 2004.

Female Genital Mutilation (FGM) constitutes all procedures that involve partial or total removal of the external female genitalia or injury to the female genital organs. In practice, it is frequently carried out by elderly people in the community (usually, but not exclusively, women) who have been specifically designated for this task.22

The Female Genital Mutilation Act 2003 makes it illegal for FGM to be performed in the UK and, for the first time, it is also an offence for UK nationals or permanent UK residents to carry out, or aid, abet, counsel or procure the carrying out of FGM abroad on a UK national or permanent UK resident, even in countries where the practice is legal.

The 2003 Act makes it a criminal offence to:

  • excise, infibulate,23 or otherwise mutilate the whole or any part of a girl or woman's labia majora, labia minora or clitoris;
  • aid, abet, counsel or procure a girl to mutilate her own genitalia; or
  • aid, abet, counsel or procure a non-UK person to mutilate a UK national's or permanent resident's genitalia outside of the UK.

Although the Act refers to "girls", it also applies to women over the age of 18.

No offence is committed by an approved person, such as a doctor or midwife, who performs a medical procedure necessary for a woman or girl's physical or mental health. In deciding this, it is not relevant that a girl or anyone else believes that the operation is necessary because of a custom or ritual.

The maximum penalty is 14 years' imprisonment and/or a fine.

Sexual Offences Act 2003

The Sexual Offences Act 2003 (SOA 2003) repealed almost all of the existing statute law in relation to sexual offences.  The purpose of the Act was to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.  For offences committed before 1 May 2004, the previous legislation (principally the Sexual Offences Act 1956) still applies.

The main provisions of the Act relevant to cases of domestic violence are:

  • rape is widened to include oral penetration;
  • significant changes to the issue of consent;
  • specific offences relating to children under 13,16 and 18;
  • familial child sex offences; and
  • familial adult sex offences.

Prosecutors should refer to the "Rape Manual" – for full legal guidance on this Act.

 

Domestic Violence, Crime and Victims Act 2004

The Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) is divided into four parts: domestic violence, criminal justice, victims and supplementary. The first two parts contain the main provisions with relevance to cases of domestic violence.

Section 1: Breach of a non-molestation order to be a criminal offence

This section came into force on 1 July 2007.

Section 1 amends the Family Law Act 1996 (FLA 1996) by inserting a new s.42A. The offence may be punished either as a criminal offence with a maximum penalty of five years' imprisonment, or as a civil contempt of court. The new offence of breach of a non-molestation order was introduced following concern that the civil procedure was ineffective in preventing and deterring domestic violence.

Previously if a person breached their non-molestation order, he/she could only be arrested for a civil contempt of court if a power of arrest was attached to the order. The maximum penalty for contempt is two years imprisonment.

The DVCVA 2004 aims to place complainants at the heart of the criminal justice system. Accordingly, section 1 effectively gives complainants a choice on the mechanism by which a breach of a non-molestation order is dealt with.. The complainant can either call the police to have the breach dealt with within the criminal jurisdiction, or they can make an application to have the person committed to custody for contempt application in the civil jurisdiction.

The two jurisdictions are exclusive and prosecutors will not be involved in civil proceedings.

Full legal guidance on section 1 DVCVA 2004 can be found at;

Non molestation orders- its under DV

Section 3: "Cohabitants" in Part IV Family Law Act 1996 (FLA 1996) to include same-sex couples
This section came into force on 5 December 2005.

This section amends the definition of "cohabitant" for the purpose of Part IV of the FLA 1996 to include relationships where two parties living together are of the same sex.

Section 4: Definition of "associated" persons for the purposes of Part IV Family Law Act 1996

This section came into force on 1 July 2007.

The "associated persons" criteria of the FLA 1996 was widened by section 4 of the DVCVA 2004 to give non-cohabiting couples who have or have had "an intimate personal relationship which is or was of significant duration" the same level of protection as cohabiting couples.

Section 5: Causing or allowing the death of a child or vulnerable adult

This section came into force on 21 March 2005.

Section 5 of the DVCVA 2004 creates an offence of causing or allowing the death of a child under the age of 16 or of a vulnerable adult. This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members.

All members of a household who have frequent contact with a child or vulnerable adult have that duty, and liability arises in respect of those who failed to take reasonable steps to protect the victim from risk, regardless of whether or not it can be proved that one particular individual was responsible for the actual death.

It is an offence triable only on indictment and carries a maximum sentence of 14 years imprisonment or a fine, or both (s. 5(7)).

Prosecutors should refer to the "Homicide" legal guidance for further detail.

Homicide

Section 10: Common assault an arrestable offence

This section has been repealed and replaced by section 110 of the Serious and Organised Crime Act 2005, which amends section 24 of the Police and Criminal Evidence Act 1984 to make all offences arrestable.

Section 11: Common assault etc. a statutory alternative verdict

Section 11 came into force on 31 March 2005.

Common assault is now an alternative verdict to more serious offences of assault even if the count has not been preferred in the indictment.

Section 12: Restraining orders

This section is not yet in force

Section 5 of the Protection from Harassment Act 1997 (PHA 1997) previously permitted a criminal court to make a restraining order only when sentencing or otherwise dealing with a defendant convicted of an offence of harassment or an offence of putting someone in fear of violence.

Section 12 of the DVCVA 2004 makes restraining orders available on conviction or acquittal for any criminal offence. These orders are intended to be preventative and protective. The guiding principle is that there must be a need for the order to protect a person or persons. This is not only in respect to cases involving domestic violence it is applicable to any criminal offending.

Breach of a restraining order is a criminal offence, the maximum sentence for which is 5 years' imprisonment.

Guidance on section 12 will be released before the section comes into force.

Section 32: Code of practice for victims

Section 32 came into force on 4 April 2006.

Section 32 introduced the statutory Code of Practice for Victims of Crime, which governs the services provided in England and Wales by a number of organisations, including the CPS. The Code describes the additional or enhanced services that can be provided to victims of crime who are vulnerable or intimidated (according to the definitions in the Youth Justice and Criminal Evidence Act 1999). Victims of domestic violence are eligible for the enhanced service under the Code.

Children Act 2004

Section 58: Reasonable punishment

Section 58 of the Children Act 2004 removes the defence of reasonable chastisement in any proceedings that involve offences under:

  • section 18, 20 or 47 of the Offences Against the Person Act 1861;
  • section 1 (cruelty) of the Children and Young Persons Act 1933; or
  • any civil proceedings where the harm caused amounts to actual bodily harm.

The defence is also unavailable in relation to treatment or punishment that is contrary to Article 3 of the European Convention of Human Rights, as a result of the decision in R v H (2002) 1 Cr App R 7.

However, section 58 has not removed the reasonable chastisement defence for parents and guardians charged with common assault under section 39 of the Criminal Justice Act 1988 where the injury suffered by the child is deemed to be no more than "reddening of the skin" and "transient and trifling".

The Offences Against the Person, Incorporating the Charging Standard guidance has been revised to support the Children Act 2004. The Charging Standard provides guidance in determining the severity of a child's injury and the corresponding charge that should be laid against the defendant.

Offences against the person charging standards

 

22 United Nations Population Fund: www.unfpa.org. (Opens in a new window)

23 This involves the complete removal of the clitoris, the labia minora, some or all of the labia majora and then sewing the two sides of the vulva together, leaving a very small opening.

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16 - Civil proceedings and legislation

The needs of individual victims vary and to ensure their safety, the criminal and civil law may need to be used in conjunction. Whilst prosecutors are not expected to be experts in civil proceedings, they should be aware of the options open to victims or other agencies under civil procedures so that an all encompassing approach can be taken in safeguarding and supporting victims.

Prosecutors should routinely make enquiries to see if there are any concurrent civil proceedings. If it is not already contained within the file, the police should be asked to provide information about any relevant civil proceedings past, current or pending. The fact that civil proceedings are ongoing does not mean that criminal proceedings cannot be commenced or continued.

Where there are concurrent criminal and civil proceedings, prosecutors will need to ensure that courts have the appropriate information to enable them to make orders that prioritise the safety of victims and children and are consistent.

Prosecutors should alert the court to any proposed orders that may conflict with current civil orders. For example, a bail condition may be imposed by the criminal court that prohibits any contact between the defendant and the victim. However, the defendant may have obtained an order from the civil court that allows contact between the defendant and the children. Similarly, bail may be granted by the criminal courts in a way that fails to take account of any existing civil orders. These situations could result in orders being made that jeopardise the safety of the victim and any children. Conflicting orders may also be confusing for the victim, the police and the defendant and make it difficult to prosecute any subsequent breaches of bail.

The availability of civil proceedings does not diminish a defendant's criminal behaviour and is not therefore a reason, in itself, to discontinue.

Prosecutors should refer to Domestic Violence: A Guide to Civil Remedies and Criminal Sanctions (Department for Constitutional Affairs, November 2004) for detailed information on the types of civil remedies that are available through the courts to victims of domestic violence.

www.dca.gov.uk/family/dvguide.pdf (opens in a new window);

Obtaining and using documents and information from family proceedings

Prosecutors may need to obtain information or documents that pertain to family proceedings. This information maybe crucial to the: decision to charge; the nature of the charge; bail conditions; applications in respect to witnesses; and the admissibility or otherwise of bad character and hearsay evidence.

Examples of documents could include:

  • statements made by the parties or witnesses
  • expert reports including reports complied by CAFCASS about any children in the family
  • transcripts of evidence (especially if any admissions have been made); and
  • the transcript of the judgment (where findings have been made or not made).

There are restrictions around the types of documents and information that can be disclosed to the police or CPS. Generally this material will fail into three main areas:

  • orders made by the court in family proceedings may be disclosed to any person provided that the order is not published to the general public;
  • documents filed in family proceedings are confidential and may only be disclosed in accordance with the Family Proceedings Rules 1991 (SI 1991/1247).
  • information from family proceedings may be shared with other relevant authorities such as the police.

The ACPO police/family disclosure protocol makes provision for applications by the police and/or CPS for access to local authority files. Requests should be made in accordance with the protocol in those Areas in which it has been implemented. The protocol can be found on the Ministry of Justice website at:

www.dca.gov.uk/family/metpol-protocol.pdf (Opens in a new window)

In some cases, where there are considerable overlaps between proceedings and strong grounds for maintaining liaison between the criminal and civil jurisdictions, joint case management hearings may be required. These are an opportunity to:

  • coordinate the timetables for proceedings;
  • coordinate expert evidence to prevent unnecessary duplication and to ensure that experts have all available information; and
  • resolve issues of information sharing both within and across the concurrent proceedings.

More detailed information on procedure and joint case management can be found in Related Family and Criminal Proceedings – A Good Practice Guide (published by the Law Society in 2007).

www.familyjusticecouncil.org.uk/publications (Opens in a new window)

Civil legislation

Protection from Harassment Act 1997
Section 3 of the Act makes harassment as defined in section 1 of the Act a tort for which a victim can bring legal proceedings. Proceedings under section 3 may be founded on the basis of one act and anticipated further breaches of section 1 (in contrast to criminal proceedings under sections 2 or 4 that require at least two actual incidents in order to constitute a course of conduct).

Victims who experience harassment can seek a restraining order, breach of which maybe a criminal offence (see Section 15). However, no power of arrest can be attached to this civil order and, in order to enforce it though the civil courts, the victim will need to return to court to apply for a warrant of arrest.

Section 3A of the Act (inserted by the Serious Organised Crime and Police Act 2005) permits a person who is, or may be, a victim of conduct within section 1(1A) of the Act to apply to the high court or the county court for an injunction.

Family Law Act 1996
Part IV of the Act came into force in October 1997 and concerns domestic violence and occupation of the family home. It provides a set of remedies available in all courts with a family jurisdiction (including magistrates' courts). Orders available include non-molestation and occupation orders. Applications under the Act can be made without notice.

Where a court has the power to make a non-molestation or occupation order, it can accept an undertaking from the respondent (for example, not to molest, not to go within a certain distance of the home etc.) A power of arrest cannot be attached to an undertaking and the court must not accept an undertaking where otherwise it would be appropriate to attach a power of arrest. If the undertaking is breached, it can be enforced as if it were an order of the court.

Unless the court is satisfied that the applicant and any relevant child will be adequately protected without such a power, a power of arrest must be attached to an occupation order made following an application on notice and where the court is satisfied that the respondent has used or threatened violence against the applicant or relevant child.

Children Act 1989
This Act was amended by Part IV Family Law Act 1996. Formerly, where a court made an emergency protection order or an interim care order for the protection of a child, it was the child, not the suspected abuser, who was removed from the home. Now, the court can attach an exclusion order (with a power of arrest if necessary) permitting the removal of the suspected abuser from the home, rather than the child.

Adoption and Children Act 2002
Section 120 came into force on 31 January 2005. It amends the definition of "harm" in the Children Act 1989 to make it clear that harm includes any impairment of a child's health or development as a result of hearing or seeing the ill-treatment of another person. This amendment adds to existing guidelines for courts on contact and domestic violence.

Crime and Disorder Act 1998 and Anti-Social Behaviour Act 2003
Anti-Social Behaviour Orders (ASBOs) came into effect on 1 April 1999. They were designed to target activities that disrupt the lives of individuals, families and communities. They are civil orders containing prohibitions to prevent anti-social behaviour.

ASBOs can only be considered in cases where the domestic violence has had the necessary impact on persons "not of the same household". This provision was not intended to cover separated partners – it was intended to cover neighbours and members of the local community – but where partners (or former partners) are maintaining separate households, the legislation does apply and ASBOs may be a valuable tool for protecting the victim and the public.

ASBOs can be made on application to the court by various statutory authorities including the police and Local Authority or post conviction (following the implementation of the Police Reform Act 2002 and Anti-Social Behaviour Act 2003). The court can make and ASBO on conviction after application by the prosecution or when the court itself is of the view that an order is necessary.

Breach of an ASBO is a criminal offence punishable by fine and/or imprisonment of up to five years.
Further Guidance can be found in Anti-Social Behaviour Orders;

Antisocial behavior Orders

 

Forced Marriage (Civil Protection) Act 2007

This Act came into force 25 November 2008.

It allows civil courts to make Forced Marriage Protection Orders to protect people from forced marriages or to pre-empt forced marriages from occurring. The courts have a wide discretion in the type of injunctions they are able to make allowing them to respond effectively to the individual circumstances of the case. Courts also are able to attach powers of arrest to orders so that if someone breaches an order they can be arrested and brought back to the original court to consider the alleged breach. It is also possible for application to be made at the county courts, rather than just the high courts, and it allows third parties to apply for an injunction on behalf of somebody else.

The Foreign and Commonwealth Office and Home Office Forced Marriage Unit develops Government policy on forced marriage, coordinate outreach projects and provide support and information to those at risk.

http://www.fco.gov.uk/en/fco-in-action/nationals/forced-marriage-unit/; (Opens in a new window)

http://www.fco.gov.uk/en/travelling-and-living-overseas/things-go-wrong/forced-marriage; (Opens in a new window)

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Annex A

Contact details for some of the national organisations that provide help or information to victims of domestic violence and professionals working with victims

These organisations should be able to give contact details for local organisations, where needed.

Organisation Role of organisation Contact Details
24 hr Domestic Violence Helpline The confidential 24 hour national domestic violence freephone helpline is run in partnership by Refuge and Women's Aid. The helpline provides support, information and a listening ear to women experiencing (or who have experiences) domestic abuse and to those seeking help on a woman's behalf and, if appropriate, refer callers on to refuges and other sources of help and information. The 24-hour free phone number is: Tel: 0808 2000 247
Broken Rainbow Broken Rainbow provides assistance to lesbians, gay men, bisexual and transgender (LGBT) people in Britain who are affected by homophobic, transphobic and same sex domestic violence. Broken Rainbow Hotline Number: 0845 260 4460
Email: mail@broken-rainbow.org.uk
ChildLine ChildLine is the free 24-hour helpline for children and young people in the UK about any problem, day or night. Tel: 0800 1111
MALE (Men's Advice Line) A confidential helpline for men who experience violence from their partners or ex-partners. Tel: 0808 801 0327
Email: info@mensadviceline.org.uk
www.mensadviceline.org.uk
Action on Elder Abuse Action on Elder Abuse works to protect and prevent the abuse of vulnerable older adults. Astral House, 1268 London Road, London England.  SW16 4ER.
Tel:0808 808 8141
Email:enquiries@elderabuse.org.uk
www.elderabuse.org.uk
IMKAAN A national charity providing strategic and targeted organisational support to refuges serving the needs of Asian women and children experiencing domestic violence. Tindlemanor
4th Floor
52 – 54 Featherstone Street
London EC1Y 8RT
Tel: 0207 250 3933
Email: admin@imkaan.org.uk
NSPCC National Child Protection Helpline Helpline for people concerned about a child at risk of abuse, including children themselves. Offers counselling, information and advice about the care of children, legal issues, sexual, physical or emotional abuse, neglect etc.
The helpline is a free and confidential service that is open 24 hours a day, seven days a week.
Tel: 0808 800 5000
Email: help@nspcc.org.uk
National Association of Gypsy Women Support group for Gypsy women and travellers experiencing domestic violence. Meadow View
Goldsmith Drive
Rayleigh
Essex SS6 9R5
Tel: 01268 782 792
Refuge Refuge is the national charity for women and children who experience domestic violence. It is the UK's largest single provider of specialist accommodation and support to women and children escaping domestic violence. 4th Floor
International House
1 St Katherine's Way
London E1W 1UN
Tel:  020 7395 7700
National Domestic Violence Helpline: 0808 2000 247
Email: info@refuge.org.uk
www.refuge.org.uk
Respect Respect is a UK-wide membership organisation for practitioners and organisations working with perpetrators of domestic violence and associated work with women partners and ex-partners. Respect's key focus is on increasing the safety of those experiencing domestic violence through promoting intervention with perpetrators. 1st Floor Downstream Building
1 London Bridge
London
SE1 9BG
Tel: 020 7022 1801
Email: info@respect.uk.net
www.respect.uk.net
Victim Support Victim Support is the independent national charity that helps people to cope with the effects of crime. It provides free and confidential support and information to help victims deal with their experiences. Victim Support line: 0845 30 30 900
Email: supportline@victimsupport.org.uk
Witness Service Victim Support runs the witness service in every criminal court in England and Wales to give information and support to witnesses, victims, their families and friends when they go to court. National Office
Cranmer House
39 Brixton Road
London
SW9 6DZ
Tel: 0207 735 9166
Fax: 0207 582 5712
Email: contact@victimsupport.org.uk
Women's Aid Women's Aid is a key national charity working to end domestic violence of women and children. It supports a network of over 500 domestic and sexual violence services across the England. PO Box 391
Bristol
BS99 7WS
England
Tel: 0117 944 4411
Fax: 0117 924 1703
National Domestic Violence Helpline: 0808 2000 247
Email: info@womensaid.org.uk; helpline@womensaid.org.uk
Welsh Women's Aid Welsh Women's Aid provided similar coverage for Wales as Women's Aid do for England Welsh Women's Aid
38-48 Crwys Road
Cardiff
CF24 4NN
Tel: 029 2039 0874
Wales Domestic Abuse Helpline: 0808 801 0800
www.welshwomensaid.org
CAADA (Coordinated Action Against Domestic Abuse) CAADA is working to create a consistent, professional and effective response for all victims of domestic violence and in particular those at high risk.  They do this through delivering services directly to advocacy projects, their local multi-agency partners and also through work with funders, policy advisers and Government. They can provide advice to professionals working with victims of domestic violence, and can also provide information about local specialist support services. CAADA
6th Floor
Market House
Baldwin Street
Bristol
Tel: 0117 3178750
Fax: 0117 3763364

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Annex B

Core components of SDVC

There are 12 core components that are critical to the success of an SDVC.  These are as follows:

Component One: Multi-agency partnerships with protocols

Effective multi-agency partnerships are based on a clear understanding of responsibilities and coordination of partner contribution, outlined in a protocol.   Initial coordination is best managed by a project manager, through a strategic steering group with an operational group that acts as a case management system.  Information sharing protocols are also recommended.

Component Two: Multi-agency risk assessment and risk management procedures for victims, perpetrators and children

Individual agencies within SDVCs should have risk assessment tools.  Each SDVC should have a Multi-Agency Risk Assessment Conference panel (MARAC) to coordinate the risk assessments of victims.  Strategic connections should be made between domestic violence (MARACs), public protection mechanisms (MAPPAs) and child protection panels (Local Safeguarding Children Boards).

Component Three: Identification of cases

SDVCs should work to a common definition.  The identification of domestic violence, wherever it becomes apparent, is an essential aspect of any activity to combat this crime.  All agencies are required to have identification systems in place that link across cases.

Component Four: Specialist domestic violence support services

The provision of specialist domestic violence support services (including Independent Domestic Violence Advisers) are critical for supporting the victims and essential to the effective working of SDVCs.

Component Five: Trained and dedicated criminal justice staff

"Dedicated" refers to posts allocated to specifically work in the SDVC system.   Provision of dedicated staff especially from the police, CPS and, where possible court personnel, is recommended.  The training of staff from all agencies in the specialised nature of domestic violence, using national accredited training materials, is an important element in the success of SDVCs.

Component Six: Court listing considerations

Adopting a particular listing practice within an SDVC enables all criminal justice and voluntary agencies to adapt and focus their resources to maximum effect.  Fast tracking (where domestic violence cases proceed through the court system according to a quicker set of time scales compared to a non-domestic violence case) or cluster courts are encouraged.

Component Seven: Equality and diversity issues

SDVCs need to address good practice in relation to a range of equality and diversity issues covering at least ethnicity, gender, disability and sexuality.  The support services and monitoring of defendant and victim profiles is recommended.

Component Eight: Data collection and monitoring

Quantitative data collection is recommended for all SDVC agencies, to monitor the SDVC performance.

Component Nine: Court facilities

Safe court facilities can play an important role in improving the court experience for victims of domestic violence.  Separate entrances, waiting facilities and special measures facilities are encouraged.

Component Ten: Children's services

Under the Children Act 2004, the leadership role of the Director of Children's Services covers all children in their locality, including those in domestic violence circumstances.   Links to children's services are recommended.

Component Eleven: Managing perpetrators

Programmes for suitable male perpetrators currently supervised by the probation service are provided throughout the National Probation Service in England and Wales.  There are community-based perpetrator programmes being run outside the criminal justice system.  The core focus of interventions with domestic violence perpetrators, both within and outside the criminal justice system, should always be the safety of those at risk from their violence and abuse (predominantly women and children).

Component Twelve: Other wrap-around services

Other services – ranging from support through the Primary Care Trusts, Sexual Assault Referral Centres, Drug and Alcohol services, Sanctuary Schemes and other housing support – are often required to meet the particular needs of victims.

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Annex C

Evidence and issues checklist

Issue to be considered

Decision/Comment

Information dated

1. INFORMATION NEEDED FROM THE POLICE

 

 

History of relationship

Previous incidents

Ability/willingness of victim to give evidence

Details of gender, age, faith, ethnicity, disability, sexuality,
special needs

Effect of proceedings on any children

Whereabouts of children during the incident

Current domestic arrangements and
information or police view on future relationship

Likelihood of recurrence

Views on safety of victim and any children

Formal risk assessment, if any

Information from other agencies e.g. Social Services, Health Dept, etc.

Details of any support from a specialist domestic violence agency

Need for special measures

Civil orders made or pending and any breaches

Child on protection register

Any other information e.g. medical or photographic evidence

 

 

2. BAIL

 

 

Police view on victim's and children's safety

Victim's view on own and children's safety

Method by which victim to be informed promptly of bail decision

Information about location, for example children's school, usual shopping area, victim's place of work and social areas

Child contact issues

Previous breaches of bail

 

 

3. EFFECTIVE EVIDENCE

 

 

Any photos of scene, photos of injuries, medical, admissions, res gestae, 999record, forensic, independent witnesses, children,  similar fact evidence?

 

 

4. RETRACTION

 

 

Has an experienced prosecutor been consulted?

Statement from victim giving full reasons?

Original complaint true or false?

Police officer's:

View on veracity and general assessment of reasons given

View on how case should be dealt with, including proceeding against victim's wishes

View on how victim might react to being compelled

View on victim's and children's safety and whether any other support agency or IDVA has expressed a view

Victim's:
Views on case proceeding?

Any other relevant information?

Consider:

Seriousness of offence

Victim's injuries (including psychological and emotional)

Use of a weapon

Any subsequent threats by defendant

Whether attack planned

Whether incident witnessed (seen or heard) by children

Whether incident occurred in presence of, or near, a child

Effect (including psychological and emotional) on any children living in the household

Chances of recurrence

Threat to health/safety of victim or any other person involved

Pregnancy

Current state of victim's relationship with defendant and assessment of its stability

Effect on that relationship of continuing with the prosecution against the victim's wishes

History of relationship (particularly if previous
violence)

Defendant's criminal history (particularly if previous violence)

Effect of "outing" a LGBT person

Information from any other agencies e.g. Social Services, Housing, Health, Women's Aid, voluntary sector (including perpetrator services) etc.

Where victim's evidence is not vital:
Sufficient other evidence and in public interest to proceed?

Where victim's evidence is vital:
Witness summons appropriate? (see next section)

Arrest warrant appropriate?

 

Any witness protection measures necessary?

 

 

5. TRIAL

 

 

Defence invited to accept any s.10s?

Victim, child, or any witness vulnerable and/or intimidated?

Witness Service or other supporting agency involved?

Specialist support agency?

Safe entrance/waiting area?

Eligible for any special measures YJ&CE Act 99?
Including: screens; video link; evidence by pre recorded video; clearing court; removal of wigs and gowns; intermediary or any other communication aids

"Bind over"
Appropriate?
Discussed with police/victim?

Sentence

Restraining order appropriate?

Any other order appropriate?

Providing information

Method of notifying victim promptly of results/decisions

 

 

 

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Annex D

Aide-memoire 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

1. 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).

2. 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.

3. 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)?

4.      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.

5.      Ensure that the police follow Local Service Level Agreements by providing all relevant material to the Duty Prosecutor.

6.      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.

7.      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.

8.      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.

9.      Make sure you are aware of available civil remedies and how they might affect criminal proceedings.

10.    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

11. 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?

12. 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

13. 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?

14. 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?

15. 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.

16. 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?


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Annex E

Examples of domestic violence offences

EXAMPLES OF BEHAVIOUR POSSIBLE OFFENCES
Neglecting, abandoning or ill-treating a child. Child cruelty.
"Honour crimes". Murder, aiding and abetting suicide.
Female Circumcision. Female Genital Mutilation.
Forcing entry into a house. Using violence to secure entry.
Pressuring a victim/witness to "drop the case" or not to give evidence. Witness intimidation, obstructing the course of justice, conspiracy to pervert the course of justice.
Physical violence, with or without weapons, inc: punching, slapping, pushing, kicking, headbutting, and hair pulling. Common assault, actual/grievous bodily harm, wounding, attempted murder.
Violence resulting in death. Murder, manslaughter.
Violence resulting in miscarriage. Child destruction, procuring a miscarriage or abortion.
Choking, strangling, suffocating. Common assault, actual/grievous bodily harm, attempting to choke, strangle or suffocate.
Spitting at a person. Common assault.
Threatening with an article used as a weapon e.g. a knife, tool, telephone, chair. Threats to kill, common assault, affray, threatening behaviour.
Throwing articles, e.g. crockery, even if they miss their target. Common assault, actual/grievous bodily harm, wounding, criminal damage, affray, threatening behaviour.
Tying someone up. Common assault, actual bodily harm, false imprisonment.
Threatening to kill someone. Threats to kill, harassment.
Threats to cause injury. Common assault, affray, threatening behaviour*.
Threats seriously to damage or undermine social status. Harassment, blackmail.
Damaging or destroying property or threatening to damage or destroy property. Criminal damage, threatening to cause criminal damage, harassment
Harming or threatening to harm a pet. Criminal damage, threatening to cause criminal damage,
cruelty to animals, harassment.
Locking someone in a room or house or preventing him or her from leaving. False imprisonment, harassment.
Preventing someone from visiting relatives or friends. False imprisonment, kidnapping, harassment.
Preventing someone from seeking aid, e.g. medical attention. False imprisonment, actual bodily harm.
Preventing someone from dressing as they choose or forcing them to wear a particular make-up, jewellery and hairstyles. Actual bodily harm**, harassment.
Racial abuse. Racially aggravated threatening behaviour*, disorderly conduct* or harassment.
"Outing", e.g. sexual orientation or HIV status. Harassment, actual bodily harm**, blackmail.
Enforced financial dependence or unreasonably depriving someone of money. Harassment.
Abuse related to dowry demand. Blackmail, harassment, common assault, actual/grievous bodily harm.
Unreasonable financial demands. Blackmail, harassment.
Forced marriage. Kidnap, blackmail, false imprisonment, common assault, actual/grievous bodily harm, rape, sexual assault.
Enforced sexual activity. Rape, indecent assault, harassment, living off immoral earnings.
Persistent verbal abuse, e.g. constant unreasonable criticism. Harassment, actual bodily harm**.
Breaching the conditions of a non-molestation order. Breach of non-molestation order.
Offensive/obscene/menacing telephone calls, text messages or letters. Improper use of public telecommunication systems, malicious communications, actual/grievous bodily harm **, harassment.
Excessive contact, e.g. numerous 'phone calls to check someone's whereabouts. Harassment, false imprisonment.
Secret or enforced administration of drugs. Common assault, actual bodily harm, grievous bodily harm, administering poison.

 

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