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The CPS has issued Guidelines for Prosecutors in relation to domestic abuse cases. Essentially these cases, like other criminal cases, must pass a ‘threshold’ for ‘sufficiency of evidence’ and of course the important but frustratingly vague concept of  ‘public interest’.

The recent tragedy of Caroline Flack, who committed suicide following the CPS decision to press domestic violence charges against her, has rightly opened up a very public debate about ‘public interest’. The tragedy is made more poignant by the grieving boyfriend left behind – he did not support the prosecution, nor did he ask for the bail conditions which kept him and Ms Flack apart.  Indeed this has prompted the CPS to take the unusual step of explaining itself.

The ‘received wisdom’ is that it is almost always in the public interest to prosecute serious allegations of domestic violence, even if the alleged victim does not support this. This is because an inherent function of domestic abuse is that it disempowers the victim and they become too scared to make rational decisions, which objectively would make them safe. On average it takes a high-risk victim 2.5 years to report domestic abuse. On average victims experience 50 incidents of domestic abuse before getting effective help. Nearly a quarter of victims attend A and E, as a result of their injuries, in the 12 months before getting effective help, many multiple times.

Also the court system itself, sometimes unintentionally conspires to intimidate victims. This is known as ‘re-victimisation’.  A typical example is where victims are summonsed, against their will, to give evidence in court, or where bail conditions are such that the victim and possibly even the whole household is adversely impacted. It is because of considerations like these that the ‘received wisdom’ is not always easy to apply.

Even the ‘sufficiency of evident test’ can be problematic. Some cases may only be reasonably probative if the victim herself gives evidence. Whilst the system, as it were, may deploy a number of devices to make the task less daunting, there is nothing that can prevent clever cross examination from a skilled advocate. This is because our criminal justice system is an adversarial one. The alleged perpetrator is presumed innocent as a matter of law. The alleged perpetrator has a Right to Silence. There is a prosecution and a  defence.

The adversarial system, is the chief component in the toxic mixture of reasons why alleged victims may be seen as having been ‘re-victimised’, by the State. This is ironic as ‘it is the Crown who brings the case, and therefore it is the Crown who must prove the case’. Sometimes, in reality, the State may need to treat victims in a hostile manner to achieve this. The situation becomes even more acerbic and complicating in circumstances, were the alleged victim or the alleged perpetrator have mental health problems.

Guidance was recently published for prosecutors in cases involving suspects or defendants with mental health conditions or disorders.

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