Domestic violence and court proceedings - interested in what people think about this situation.

[TandB]

I am curious to hear some opinions on a situation I was involved with through work over the last few days. I will have to give a fairly broad account without too much specific detail for obvious reasons.

I was representing a young man charged with two separate common assaults on his wife. For those who don't know, common assault is any sort of unwanted touching that does not cause actual injury, or causes transient injuries - it could be a spit, a poke or it could be a punch or kick.

He was said to have assaulted her twice, including punches to the face, causing bruising.

They were from outside the UK, from a country with a very poor history of women's rights. He was brought up in the UK and taken back home for an arranged marriage at a very young (barely legal in the UK) age. She was about 20 years older and spoke no English and had no education.

The case I am talking about never actually came to trial, so I can only speculate as to what what would have happened, but he had previously admitted slapping her and she had previously made allegations which she did not follow through.. In the recent case I have no doubt that if it had gone to trial he would have been convicted.

The defendant was in custody throughout the proceedings, because of the history of allegations and admitted violence and because the complainant was completely isolated with small children - she still spoke no English and had no friends or family in the country. The very, very lovely officer dealing with it (most sensitive, concerned officer I have ever come across in a DV case) managed to persuade her to move to a womens' refuge a long way away as she was frightened of the defendant's family. The defendant was told only that she had left the area and was in a refuge - not where she had moved to.

The run-up to the trial was taken up with arrangements for her to give her evidence via a live-link from her local court to our court as she was too frightened to come back. In the middle of these arrangements she went to her local police station and said she did not want to proceed and she wanted to get back with her husband. This is not at all unusual in DV cases and the accepted practice now is for the CPS to apply for a witness summons where there has been a history of withdrawn allegations. When a summons is issued the most usual outcome is that the victim attends and gives their evidence, although some do attend and refuse to go into court.

It was difficult for the summons to be issued as the refuge did not want to co-operate with compelling her to attend but it was eventually sorted out. The victim did attend court but she refused to go into the court room to give evidence. The prosecutor spent several hours trying to persuade her but was unsuccessful.

This is where things took an unusual turn. Usually the CPS will give up at this point and offer no evidence. In this case, the prosecutor's superior ordered him to apply for a warrant to have her arrested and forced into court and threatened with custody if she did not give her evidence. The prosecutor did not want to do this and the officer was against it. The court clerk said it should not be done and I made it clear that, leaving aside any implications for the defendant, I was deeply, deeply uncomfortable with it. He applied and the (female) judge gave it very lengthy consideration and refused to grant it on the basis that the victim had a just reason for her refusal, ie fear of reprisals.

This obviously meant the proceedings were at an end and the defendant was released. Everyone was of the view that the victim would return to her husband.

I would be interested to know what people think about the judge's decision to refuse to issue a warrant. She effectively chose the women's right to make a decision based on fear and vulnerability, over the desire of the Crown to prosecute and hopefully secure the end to the violence.

I genuinely can't decide whether I think she was right or not. My gut instinct says that it was the right decision as I could not possibly get my head round the idea that it would be in this woman's interests to have her physically dragged into the courtroom and threatened with sanctions if she did not do what she was frightened to do. But I have a niggling little voice saying "but it might have been the best thing in the long run".

What do people think?

[Pootles2010]

I think she was right - it's surely not right to force a woman to do something against her will because 'it's the best thing for her'.

She is an adult and can make her own decisions. In this particular case, I think everything possible was done - she was in a safe house, had sympathetic officers etc.

I would however worry that it is a bit too recognisable - what do others think?

[TandB]

Don't worry - some details have been fudged/changed for that very reason. Nothing that makes any difference to the story but I always make some minor changes if talking about cases even when, as in this case, it is technically in the public domain.

[TheRealTillyMinto]

i would imagine this story is not unique - plus, i dont know which bits you have been changed....

i think there needs to be a clearly marked point at which you are agreeing to testify and you cannot change your mind from this point forwards.

the saying 'for evil to triumph, all that is necessary, is for good people to do nothing'. well that could be the state doing nothing. or it could be the victim. for the victim to testify, they have to want to and remain of this view for a long period of time. they only have to have one period of doubt and decide not to, for their whole life to turn in another direction.

so you should be given a sensible period of time to reflect if testifying the correct thing to do, but if you choose to, then you are expected to follow through. the consequnce could be the same people just stopping sooner, but then the resources could be better focussed on those who are willing.

[NoMoreWasabi]

Its a really difficult one. You can have sympathy for the woman given her circumstances but her not having to testify also makes me uncomfortable.

However unless he was actually sent to prison for a considerable period (would he have been?) I image she might have gone back to him anyway even if convicted.

I don't know that much about this area but could a prosecution not proceed on the basis of previous statements she has given/medical evidence/statements from police officers who attended the event?

[tethersend]

I think the right decision was made- otherwise the court simply assumes the role of her abuser by making her do something out of fear.

I assume SS are involved and will be monitoring the family?

[TandB]

I am glad it is not just me who is in two minds about this. Throughout the very extended discussions/pre-trial proceedings I was very, very clear that I did not think she should be compelled - not just because of my deep discomfort with the whole scenario, but also because I thought it might kill off any chance there might be of her turning to the police in the future if this happens again.

It was only afterwards that I started really wondering if it was the right outcome. Well, obviously it wasn't the right outcome overall, but the right decision.

Wasabi - they couldn't proceed without her in this particular instance because of some evidential issues. If they could have done, they certainly would have done and I think this particular judge would have allowed them to do so. In terms of a prison sentence, I think he would have got the book thrown at him. Not least because I have a sneaking suspicion that he would have caved and pleaded guilty once they actually got her to testify and there is nothing judges hate more than someone who plays the odds in DV cases. So taking into account time served on remand and release at half-way I think he would still have gone inside for another 3-4 months. My thinking on that issue was that it might just give a little more time for her new support network to get her to a point where she felt able to stay apart from him. Probably not thought, I suppose.

Tethers - I assume SS are involved. I can't imagine they are not. If they weren't before I would imagine the officer will want to ensure they are now given what has happened.

[tethersend]

For me, the issue is that I don't think you can deny an adult woman free will because she will make the 'wrong' decision IYSWIM.

One society's idea of justice is not the same as another's- forcing a woman to testify to her sister/friend's adultery in a country where it would mean the sister/friend was stoned to death could be viewed in a similar light if you believed that adultery should be punishable by death...

[Anniegetyourgun]

But suppose she had still refused to testify because she was more afraid of reprisals than of prison? Then an innocent woman would have been imprisoned for the crime of being afraid. That can't be in anyone's interests.

[NoMoreWasabi]

I suppose at least he has spent some time in jail which despite having the charges dropped would mean that there has, on one level, been consequences for his behaviour. So I guess there is a little hope that if she does return from him that he might moderate his behaviour rather than see it as a green light. All deeply unsatisfactory though.

[TandB]

Annie -one of the odd things about the whole situation is that we all knew that she wouldn't be sent to prison. The warrant was purely a mechanism to try to persuade/force her to give evidence.

If she had still refused then the CPS would have had to give in at that point. The judge would not have sent her to prison.

The only person who wouldn't have known that would have been the witness.

[Anniegetyourgun]

Ah, I might have guessed that my comment was a bit too obvious. I suppose that's a little bit better than intending to jail her if she didn't comply, but not much. Effectively, then, she was being lied to as well as threatened by the powers that were claiming to protect her. She must have felt that everybody was against her, so who could blame her for fleeing back to the devil she knows?

Disturbing IMO.

[HHLimbo]

Could they not use the original statement the victim had made?

Or have her give evidence via the nice officer who the victim was already familiar with, perhaps in a comfortable office rather than an intimidating courtroom?

Did someone talk to the victim and accurately report why she did not want to give evidence?

[TandB]

Annie - not too obvious at all. It is a bit hard to imagine getting to the point of threatening someone with prison and then going "actually, only having you on, off you go".

Limbo - they couldn't use the original statement in this particular situation because of various evidential deficencies that I won't bore you with. She wasn't actually in a courtroom - she had already been permitted to give her evidence via a live link to a private room in another part of the country. When I say she wouldn't go into the courtroom, I am using the legal definition of the livelink room as an extension of the physical courtroom - it has the same legal status. And the prosecutor and officer spent nearly 3 hours in discussions with her and she clearly stated her reasons.

I strongly suspect she had been heavily "coached" by someone with a vested interest - which would of course mean that someone close to the defendant already knew where she was, or how to contact her at least. Doesn't bode at all well.

[Kladdkaka]

How is threatening a frightened abused victim with imprisonment any less abusive than what she's trying to escape from in the first place? Hard though it is, I think the judge made the right decision.

It's frustrating for those involved but they have to remain detatched and do what they can to help and support the woman. Showing frustration at the cycle of abuse, although understandable, puts a barrier up between the victim and help. I know that from first hand experience. People don't really understand why we go back again and again. Why do we believe the false promises? It's because they are not false, they are absolutely true and when you are at your lowest and isolated from everything normal, you desperately want and need to believe it. When an abusive partner promises it will never happen again, they mean it. It just doesn't last.

Thinking back to when I was in a violent marriage, I can honestly say that had I been sent to prison for not testifying, I think I would have killed myself.

Maybe what needs to happen is a change in the law that allows testimony collected at the time to be admissable without the victim testifying later. Although even then I have reservations because if the victim returns to their partner it won't make it easier for them, if anything it will make it worse.

What helped me was the patience of the policemen who attended time after time, without judgement, without showing frustration, who treated me with humanity and compassion and over time built me up so that I could say enough was enough. No pressure to prosecute, no pressure to leave, no pressure to do anything. But when I really was able to mentally disengage (through counselling) their response was immediate and like a ton of bricks.

[TandB]

Sorry to the last couple of people who responded. I forgot I had posted about this - got distracted by the fact that the rest of my entire caseload is going tits up due to badly-planned administrative changes in the criminal justice system - but that is a whole other rant.

Helpful insight from Kladdkaka - thanks.

SGM - there is provision for prosecution without the victim in certain circumstances but it isn't heavily used. I think the Crown are still a bit uncertain about it as a procedure. This wasn't suitable due to evidential deficiencies.