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Tue 31 March 2020
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Barrister Gareth Roberts shares his insights on how the criminal justice is failing those who have endured violence by partners.

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Proceedings in courtroom 14 at Manchester Crown Court had ground to a halt. The case, involving an allegation of controlling and coercive behaviour of a man against his long-time partner, had rather dramatically stalled at the point when the complainant – a quiet, thin, 25-year-old mother-of-three – had refused to take the oath and give evidence against the defendant. Instead, she rushed out before being intercepted by her sister and a police officer who placed her in a conference room and started the process of trying to coax her back into court to give her account. 

This isn’t an isolated incident. It is very often the way a domestic violence case plays out in the courts. 

They are the cases that most criminal lawyers dread – not because we lack compassion or empathy, but because we know that in a profession in which we are constantly dealing with human beings, ordinary people, who are at their most fragile, those involved in domestic violence cases are, perhaps, the most vulnerable of all. 

After the very sad suicide of television presenter Caroline Flack, who had been charged with a domestic assault upon her boyfriend, social and mainstream media was predictably flooded by those with vitriol and little understanding of how domestic violence cases are dealt with. Some chose to attack her, churning out the usual cliched insults without being armed with any of the facts, others aimed their anger at the Crown Prosecution Service (CPS), which decides whether a case should be brought to court or not: how dare it charge an innocent woman whose boyfriend didn’t even want to press charges? 

I cannot guess how things would have progressed had Flack’s case gone to trial. But, as someone who has prosecuted many DV (domestic violence) cases and represented many accused of crimes against their partners, I’d like to explain how these cases are approached by the police, the CPS and lawyers. 


Refusing to Give Evidence

Overwhelmingly, DV cases involve a man using violence to control and intimidate a woman. 

Often, the abused has become so de-sensitised to the behaviour of their abuser that when the man tells her that he “loves her” and that “he’ll change”, she believes him, retracts her complaint, takes him back, and the cycle of violence predictably starts again.

It is almost always the case that the violence and coercion occurs as a course of conduct over a number of months or years and that the police will only become involved after the woman is hospitalised and the police are informed by medical staff; if there is a witness – often a family member – who makes a complaint; or, finally, when the woman herself decides that she has taken her last beating and makes a complaint. 

Lawyers representing the defendants in a DV case are under a duty to accept the instructions given by their client. If they tell the lawyer that the woman is making it all up to get at them because she’s jealous of their new partner, then that is the way the lawyer proceeds: they stand up, put on their best courtroom face and tell the jury or the magistrates that “hell hath no fury like a woman scorned”. It is as subtle as a breeze block, but sometimes it might be true. The lawyer’s job is not to judge, they are there simply to represent their client and test the evidence.  

More often than not, however, the instructions given to defence lawyers in DV cases consist of little more than “the Mrs won’t turn up at court”. Defendants will know this because, despite bail conditions to stay away, often, an abusive partner will have managed illicit contact with his victim, enabling him to continue to exert a poisonous control by repeating his mantra that he has changed and that he still loves her. He’ll subtly tell her how much he longs to see the kids, pouring pressure upon an often beaten and always vulnerable woman as she contemplates life as a single woman.

Sadly, this pressure often prevails and she will tell him that she won’t be turning up. Once the defendant is armed with this information, the usual way in which a lawyer gives advice about the case goes out of the window – they don’t care about the evidence because they are confident that, come trial day, the Crown won’t have a case and the defendant will be acquitted.

More than any other types of criminal cases, DV cases get thrown out because the complainant refuses to give evidence. 

This is a source of huge frustration and concern for the CPS – not least because a large percentage of murders or incidents of serious violence are domestic-related. The CPS knows only too well that the young woman who is telling its lawyer that she doesn’t want to proceed with the case because “he’s a great dad” and “I believe this time he’s definitely changed” is the same woman who, a few months down the line, ends up in hospital with serious injuries, or worse, as another murder statistic. 


The Danger of Cuts

What can the police and the CPS do in cases of domestic violence? 

They take no chances and the put the immediate welfare of the woman at the heart of every decision they take. Once a complaint is made, statements are taken as quickly as possible and all physical evidence obtained, stored and documented. Police will then try to ensure that that victim is safe by making a referral to a women’s refuge or safe house.

However, all of this is dependent on resources. Police cuts over the past decade are well documented, but few people are aware of the tragic reality of women’s refuge services after 10 years of austerity. According to the Woman’s Aid Audit, 64% of police referrals were rejected last year because of a lack of resources. This means that, very often, the victim of DV is placed in wholly unsuitable accommodation or has to stay at the family home and live with the fear that her ex may turn up at any moment. Without doubt, this feeling of vulnerability contributes to the collapse of DV cases as the victim just doesn’t believe it when she is told that everything will be done to protect her. 

Once an investigation is complete and the file passed to the CPS, if it has a prima facie case, it will prosecute – until a judge tells it to stop or a jury pronounces its verdict. Even if the complainant retracts her initial statement, the chances are they will continue. This clearly isn’t ideal but there is little choice.

In recent years, measures have been introduced to try to help the victims of DV. Witness care and specialist police officers will try to help her; a court visit ahead of the time will be offered to try to put her mind at ease; special measures will be granted by a judge to enable her to give evidence from behind a screen or via video link to ensure minimum contact with her abusive ex. Cases are now expedited to ensure that they don’t drag on.

All of these measures are good and proper, but they are all are subject to resources and, tragically, the cuts to policing, witness care services and the court sitting days mean that the police, CPS and court staff are often not in a position to help the victims of DV in the way that will ensure that the abused feels that she can safely give her evidence and then confidently start to rebuild her life. 

Back in Manchester, things didn’t end well.

After a couple of hours, the complainant refused to come back to court and her ex-partner was released with no conviction. In this particular case, the issue was not one of resources or funding or the system, but simply that this young woman didn’t feel able to given an account about her life that would lead to her ex going to prison. That is her right. Just as it is the defendant’s right to deny that he did anything wrong.

Ultimately, all the state can do is strive to keep every victim of domestic violence safe so that she continues to have the right to choose whichever person she wants to have a relationship with. Alas, these cases are always ugly and rarely satisfying. 


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