Lack of victim participation frequently results in unsuccessful outcomes
According to the Office for National Statistics, 51% of the domestic abuse prosecutions between 2017 and 2018 in England and Wales ended unsuccessfully because the victim did not attend court or did not support the prosecution. Since that time, efforts have been made to help raise the confidence victims have in the criminal justice system, but despite some improvements, many victims remain unwilling to participate in their own trial, perhaps due to fear of or control exerted over them by the perpetrator.
Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) have identified the increasing number of domestic abuse cases that are closed because the victim does not support action as an area needing improvement for some police forces.
CPS secured a conviction in over three-quarters of the domestic-abuse related cases it prosecuted in the year ending March 2018. Of the remaining one-fourth that were unsuccessfully prosecuted, one-fourth of those involved victim retraction, where the evidence supported the case, but the victim refused to be called as a witness or withdrew the complaint. Just over 26% of unsuccessful prosecutions were due to victim non-attendance.
Why does the CPS pursue ‘victimless’ prosecutions of domestic abuse?
When a victim withdraws their own complaint or refuses to testify in the case and the CPS elects to pursue the case anyway, it is essentially a “victimless,” evidence-based case with sufficient evidence from other sources to satisfy the Code for Crown Prosecutors. When the Code is satisfied the case should typically be brought, unless evidence can be provided that the defendant’s vulnerability renders the prosecution to be no longer in the public interest.
While some have argued against pursuing charges of domestic abuse when the victim does not wish to participate, the European Court of Human Rights has emphasized the need to treat domestic violence as a crime, even when the victim retracts their complaint, in order safeguard victims against such crimes. The goal of criminalisation is to decrease abusive behaviour and to show that society does not tolerate abuse. If the CPS were to move away from victimless prosecutions, many fear that victims of domestic abuse will be left unprotected by the criminal justice system.
CJJI Study: Lack of funding resulting in viable cases being dropped
Evidence exists that not all victimless cases are being pursued. One recent Criminal Justice Joint Inspection study, Evidence-led Domestic Abuse Prosecutions, found that police and prosecutors are abandoning domestic abuse cases too quickly when victims are unwilling to pursue complaints against violent partners. In one case mentioned in the report, evidence from a taped 999 call and a police body camera was not provided to the CPS until the day before the trial and [by] that time, the victim had retracted, and the opportunity to pursue an evidence-led prosecution had been lost.”
Lack of resources is a common excuse given for discontinuing such investigations, even when sufficient alternative evidence exists. While the domestic abuse caseload for both police and the CPS has increased 88%, there has been a 25% reduction in funding, stretching investigators and prosecutors thin and forcing them to make difficult decisions regarding priorities.
According to the CJJI study, there are currently no mechanisms in place to measure the effectiveness of evidence-led prosecutions, meaning that there is no opportunity to learn lessons and share best practices across the organisations. Neither the police nor the CPS can assess the quality of evidence-led cases to ensure they are being used appropriately and effectively, even though both the police and CPS have systems to identify domestic abuse cases. However, it is not currently possible to isolate and identify evidence-led prosecutions separately.
Flack case raising awareness of domestic abuse
These are far from simple issues. The CPS needs to work with domestic abuse agencies when preparing cases, since some victims will not be ready or willing to face their abusers and fear that deciding to prosecute will only further threaten their safety. As prosecutors become more and more aware of the methods abusers use to control their victims, it is important that the criminal justice system respond promptly.
While the Caroline Flack case has raised awareness of domestic violence, victims need to be reassured that they will receive support when they choose to participate in the prosecution of their abusers, and the perpetrators need to understand that justice is impartial and objective, or at least should be.