July 2014: Refuge s response to consultation on CPS guidance, The Prosecution of Domestic Violence Cases (issued May 2014)

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1 July 2014: Refuge s response to consultation on CPS guidance, The Prosecution of Domestic Violence Cases (issued May 2014) Refuge is pleased the CPS has seen fit to create detailed guidance for prosecutors of domestic violence and we recognise the commitment shown to improve practice in this important area of work. We are also pleased to be given the opportunity to comment on the draft guidance document and to share the views of Refuge s team of expert domestic violence practitioners including our network of independent domestic violence advocates (IDVAs), who support women through the criminal justice system, as they attempt to obtain safety and justice. In general, we are happy to see that those at the top of the CPS have got so many of the fundamental principles, important for successful prosecution of domestic violence, right. A focus on comprehensive evidence gathering, the importance of victimless crimes, awareness of safety and risk, understanding reasons for victim disengagement, the timely progression of a case, the use of special measures, and a recognition of the dynamics of domestic violence, particularly the psychological / non physical aspects of abuse, are all welcome. Awareness of the impact of domestic violence on children and their vulnerability in their potential role as witnesses to a case is also to be commended, though we are dismayed that the serious risk of harm or homicide to infants 1 under one year is not mentioned at all. We must also express concern about the failure of the guidance to articulate more clearly that domestic violence is a gendered crime, with females and their children representing the overwhelming majority of its victims. Domestic violence is internationally recognised as a cause and a consequence of gender inequality. 2 More recently, The Istanbul Convention (article 18) states that efforts to provide support services must be based on a gendered understanding of violence against women 3. Not only are females abused in domestic contexts more frequently than males, but research indicates that the impacts sustained are more serious, with two women a week killed, an estimated 27 women attempting suicide every day 4 and many more suffering other adverse effects with regard to health, mental health and social/financial capital. Refuge acknowledges that the CPS must work within the government definition of domestic violence, which is by its own admission very broad, but we believe its limitations should always be articulated. 1 Based on findings from the most recent National Psychiatric Morbidity Survey it was estimated that around 39,000 babies under one year are living with domestic violence in the UK. Cited in Dr Manning, V. (2011) Estimates of the number of infants (under the age of one year) living with substance misusing parents (NPSCC). Cuthbert C., Rayns,G., Stanley, K. (2011) All Babies Count. Prevention and Protection for Vulnerable Babies. Babies under one year are at greater risk of being killed at the hands of another person than any other age group in England and Wales. On average infants under one year are 7 times more likely to be killed than older children. Office for National Statistics (2013) Focus on: violent crime and sexual offences 2011/12. 2 The UN Declaration on Elimination of Violence against Women recognises that...violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men 3 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (2011: Council of Europe) 4 Sylvia Walby, The Cost of Domestic Violence (2004) 1

2 It is our opinion that the government definition of domestic violence has become so broad that its traditional interpretation, violence against women, struggles to retain visibility within it. Domestic violence is now a 'catch all' term used to describe any form of violence or abuse occurring between people who may or may not be related and who have at one time shared a domestic setting or intimate relationship. In reality, the different groups of people to which the term applies can be so varied, with needs so disparate that it is extremely difficult for any agency to create a generic policy or approach to practice that meets the needs of all. We acknowledge that in recognition of this fact, the CPS calls for an individual approach to each case 5 but we believe it is important to also acknowledge the commonalities across gender based violence against women and their children when developing coherent policy and practice, much of which arises from their unequal position in relation to men. In brief, Refuge would recommend a more gender aware and gender specific approach to the guidance so that prosecutors are in no doubt that domestic violence predominantly affects women, girls and their children in particular ways, and that this knowledge is reflected in any training provided to ensure effective implementation. This is not to exclude other groups of victims nor to minimise the impact of abuse upon them. We simply suggest that it seems important to develop targeted policy and practice which is specific to the group affected. For example, we are not aware of any research, evaluation or service user needs analysis which suggests that services for abused women translate directly to those required by abused men. Refuge is also concerned that the number of successful prosecutions for domestic violence, although slowly improving, remains extremely low despite a good understanding of the issues at the top of the CPS and the existence of comprehensive guidance for prosecution. Although we appreciate that in some instances, there are reasons beyond the control of crown prosecutors for this low rate, Refuge's clients and staff continue to experience a number of difficulties with the CPS, indicating a significant gap between policy and practice (these are listed briefly below in direct quotes from Refuge s network of specialist practitioners and IDVAs). Poor understanding of domestic violence resulting in negative or judgmental attitudes to abused women. "Prosecutors give their opinion on domestic violence to victims which is inappropriate and some blame the women or tell them that they are bad mothers." "CPS staff should be aware of how to talk to victims of domestic violence as they are often judgmental, inappropriate and pushy." "Prosecutors need to understand they are dealing with someone's life. There is a very concerning lack of awareness about this." Failure to seek and or present appropriate evidence when building a strong case "There is too much focus on the victim s statement and not enough consideration given to alternative evidence." "The CPS don t use or ask the police to gather additional evidence such as 999 tapes or statements from witnesses other than the victim." "Evidence from neighbours is not used or even sought." "CPS often fail to present information relevant to bail hearings such as previous convictions and police call outs." "Medical records are not used or even requested by the CPS." "There is still a huge problem with the lack of victimless prosecutions across the board. In many local areas we virtually never see these take place. The CPS inevitably blame the police for lack of strong evidence The broad definition of domestic violence means that the dynamics and forms of how abuse takes place will also be broad; and as such, prosecutors should focus on the specific facts of each case when reviewing the case and their charging decision 2

3 provided, but the CPS need to acknowledge they have the power to request additional evidence and could support the police in building a stronger case". Failure to protect vulnerable victims of abuse "Prosecutors don t think about restraining orders every step of the way at every hearing; they only consider them if we ask for them or if a judge prompts them." "Restraining orders and special measures are not applied for even when there is an application in the file." "Clients are rarely informed about changes to bail in some areas. The police also tell us that the CPS does not update them about bail hearings." "There are some areas where the CPS will not liaise with us at all despite many, many attempts. There are often times when we have critical information which is very important to the safety of the client and the lack of communication with CPS really puts our clients at further risk." "They don t ensure that special measures have been requested and often lose the paperwork requesting that the special measures be granted." "Special measures are applied for late and so courts are less likely to grant them." "There are still very often late or no applications for special measures made by CPS. Although they are often granted on the day of court, it can be distressing for clients to not know whether or not they have been granted until coming to court and even more distressing for clients on the occasions when they are refused, usually because judges say the CPS did not put in an application early enough." "Prosecutors disclose victims addresses in court to the defence and to the perpetrator, even where a woman has had to flee the violence or her address is unknown to the perpetrator. Failure to properly prepare a case "Prosecutors often only see their papers on the morning of the trial, sometimes only when they are actually in court during the prosecution. They don t always ensure that they have met the victims and witnesses to introduce themselves before going into court". "The CPS are often underprepared for cases." Poor communication "Lack of communication between the CPS and all agencies is a massive problem and is having a vastly negative impact of the entire criminal justice system." "There is a consistent lack of communication between the CPS and our IDVA teams in many local areas. We may have information to flag to CPS about the client wanting a restraining order, but we re unable to get this information to the CPS because of lack of willingness to communicate with us or to respect our role as advocates for the client". "They don't ensure the police have used translators. Downgrading of charges "They downgrade charges and accept cautions and bindovers that are not appropriate." "There are problems with under charging i.e. charging with a section 39 when it should be section 47, section 20 etc." "Charges are often downgraded which makes victims lose confidence in the system and makes them feel that the system is on the side of the perpetrator and so they feel it is pointless for them to even bother reporting. This just reinforces exactly what the perpetrator is telling them that there s no point reporting it nothing will come of it". 3

4 Consultation questions Question 1: Do you agree that the CPS approach to understanding the context of domestic violence is right and well-informed? Whilst there is much that is positive in the guidance document, Refuge has grave concerns about the gender neutral position on domestic violence taken by the CPS, as well as the very broad definition used to address the needs of all groups. We believe that if prosecutors fail to recognise domestic violence as primarily an issue arising from women's inequality, it is likely that their prosecutions will continue to fail. Information about the severity of violence suffered by women and their children, including the risk of serious harm and homicide should be made clear to prosecutors. It is grossly unacceptable that they should acquaint themselves only briefly with a woman's file as they enter a court room, that they should fail to introduce themselves to the client or omit to bring vital, yet often basic evidence before the court. If prosecutors had a real understanding of the context of domestic violence, including its devastating and potentially lethal impact upon its victims, they would conduct themselves with greater professionalism and they would treat abused women with greater care. This is not yet happening and in its current form, we cannot see how the current guidance would promote this change. Q2: Have we identified the right potential lines of enquiry for evidence gathering and the right public interest factors to be considered when the CPS makes a charging decision? If not, how can we address this? Refuge is very pleased that many useful lines of enquiry are described within the guidance. Nevertheless we do have some concerns with regard to charging decisions. For example the guidance proposes that 'any decision to take 'No Further Action' or to charge a lesser offence must be taken by a prosecutor suitably experienced in domestic violence cases' but no information is offered as to what constitutes 'suitable experience'. We are also concerned about proposed discretion with regard to restorative justice 6 in cases 'not involving intimate partners' as this could be interpreted to mean ex-partners or be applied to victims of stalking/harassment who have never had an intimate relationship with the perpetrator. The proposal to allow cautions for domestic violence perpetrators is deeply disturbing to Refuge 7 particularly as it is broadly accepted that such violence is rarely an isolated or minor offence, but is rather part of a systematic pattern of behaviour which generally worsens over time. This move represents a potentially retrogressive step and may serve to place women and children at risk. Refuge proposes that when determining whether the case is in the public interest, and of course when assessing the safety of any victims, the presence of babies, particularly those under one year, should be considered Under the Code of Practice for Victim of Crime (October 2013), victims are entitled to take part in restorative justice techniques. Police policy does not support the use of restorative justice for domestic abuse in intimate partner cases, however, officers are allowed to consider its use where a domestic violence case not involving intimate partners arises and where they have considered the specific criteria set out by ACPO. Restorative justice should only take place after cautious consideration and advice from supervisors or experts. (Prosecutors should see for further information.) If the evidential stage of the Full Code Test is satisfied, it will rarely be appropriate to deal with a domestic violence case by way of a simple caution. However, where a positive action policy has been adhered to, the victim does not support a prosecution, and the available evidence (including any additional evidence adduced) would only disclose a very minor offence, the police will consider a simple caution in preference to a decision to take no further action. 4

5 Q3: Do you think the guidance clearly sets out the basis for how we handle cases where complainants are not willing to support a prosecution? Refuge believes the guidance offers a good understanding of reasons why victims might change their position or retract their statements. The acknowledgement that IDVAs, together with the application of special measures, can play an important role in supporting vulnerable victims who may be persuaded to re-engage is also positive. Refuge is also keen to see rigorous examination of bail eligibility, particularly where there is known risk to the victim and in all cases where a victim has children. Refuge is also pleased that the risk of harm or homicide to children through contact arrangements is documented 8 yet we are deeply dismayed that the guidance does not recommend taking action to overrule family court orders when such risk is identified. With regard to summoning children as witnesses to domestic violence, Refuge is relieved to discover this will only occur in exceptional cases. We would add to the list of considerations when making this decision, the willingness of the child to give evidence 9 as in our experience, there are some who say they would benefit from being able to 'tell their account' of what happened at home. Special measures should always apply. Q4: Do you agree we have properly outlined the safety and support issues affecting victims and how those issues can be managed by the CPS? We are pleased to see within the guidance an awareness of safety and risk for adult victims of domestic violence, together with the need for confidentiality regarding victim information. As mentioned above, current practice has been noted to place victims at greater risk so we hope a renewed focus on safety might improve this position. It might also benefit the guidance to make prosecutors aware that victims frequently minimise the abuse experienced and underestimate their risk of harm. It is often only through developing a close working relationship with victims that the full extent of the abuse becomes apparent, which highlights the importance of close working with IDVAs. We therefore welcome the call for increased communication and links with IDVAs. We are also pleased that the guidance reframes some of the behaviours demonstrated by domestic violence 10 victims as supporting rather than detracting from the case. We would however recommend rephrasing the final sentence at paragraph 170 so that it reads 'this must not be seen as a detriment to the victim'. Whilst the guidance discusses the use of risk assessment tools for adult victims it does not mention risk assessment for children beyond the involvement with LSCBs, without suggestions as to how to incorporate safeguarding of children into everyday practice. We would also recommend that the guidance includes a section under the heading for children which describes the unique risk to babies and young children, as well as to the unborn foetus. Given the number of high profile child abuse cases currently in process, alongside the general mantra that 'child abuse is everyone's business' and the call for mandatory reporting, is vital that the Where the proposed variation concerns contact with a child, prosecutors should note that such contact might provide the defendant with opportunities to intimidate the child and/or victim which, in the worst cases, could lead to murder or suicide Where it is thought appropriate, prosecutors should consider: the nature and seriousness of the case; the usefulness of the material evidence the child can provide; the age and maturity of the child do they have a sufficient mental understanding to give evidence; and, whether giving evidence would be detrimental to the child's welfare or safety. 10 the offence not being reported immediately; the account given may have been inconsistent; the victim carrying on with their everyday life; the victim voluntarily returning to their abuser; or, the victim's reliance on alcohol or other substances These factors have in the past been seen as undermining the credibility of an account; however, they may in fact support the behaviours of victims who have been, or continue to be, abused. Victims of domestic violence typically experience a number of abusive incidents before they feel able to report the matter. This should not be seen as a detriment to the victim. 5

6 CPS takes a lead in this area and champions the protection of vulnerable children living with domestic violence. Q5: Have we demonstrated sensitivity and understanding to the issues which may be experienced by victims from different groups? We would recommend including a reference to the fact that disabled women are twice as likely to experience domestic violence than able-bodied women. Whilst we are pleased that psychological and other non physical forms of abuse are mentioned we are disappointed that there is a lack of guidance about how these crimes might be prosecuted. We would urge the CPS to include some detail as to how successful prosecutions could be brought in these areas. There are two groups of victims missing from the consultation: babies, who are mentioned above, and women who either complete or attempt suicide as a consequence of domestic violence. The latter are missing from the category of victims who are deceased where a case of manslaughter could be brought against the perpetrator and from victims whose deaths are discussed at domestic violence homicide reviews. These omissions are highly significant as they include two of the most vulnerable groups of victims, one at greatest risk from homicide and the other at the greatest risk of self-harm. Refuge would urge the CPS to take steps to include babies and women who attempt or complete suicide within the guidance. 6