Domestic Abuse Incident - Essay Example

?Guidance and general principles that must be taken into account by them when considering the decision as to whether they should prosecute Billy for the alleged assaults Introduction The Family Law Act 1996 is the main source of remedies for domestic violence and it provides for two types of orders, namely, non-molestation orders and occupation orders designed to give protection to the victims against physical and other forms of abuse (Miles & Harris-Short, 2011, p. 203). Domestic Violence Crimes and Victims Act 2004 (Gov.UK, 2004) and Domestic Violence Crimes and Victims (Amendment) Act 2012 (Gov.UK, 2012) are the Acts to amend Part 4 of the Family Law Act 1996, the Protection from Harassment Act 1997 and Protection from Harassment (Northern Ireland ) Order 1997 and section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively. Association of Chief Police Officers (ACPO and Crown Prosecution Service (CPS) have issued the guidelines in order to stipulate how to handle domestic violence complaints and make prosecution of the perpetrators. Domestic violence, also termed as domestic abuse, can attract action under both criminal law and civil law. In the present case, Hilda has been assaulted by her husband Billy resulting in her hospitalisation. In an inebriated condition, he has also assaulted the nurse at the hospital where he was refused permission to see his wife. Given this scenario, the prosecution and police authorities are required to ensure the following actions are adhered to. Protection to Victims First step in response to domestic abuse incident or report is to ensure protection to the victim, her children and police officers involved in the investigation and prosecution from likely harm by the perpetrator both while receiving calls and after the violence report has been registered. Though this may not apply to the present stage, it is worth mentioning that if the suspect/perpetrator has not left the scene while the call is being received, the caller should be kept on the line and have the background noise tape-recorded through a 999 call which could capture the victim’s and the suspect’s voice and be a crucial evidence for prosecution and helpful in monitoring the incident. If the suspect has left the scene of occurrence, the victim or caller should be asked to lock and secure the premises and comeback to the phone and then take full description of the suspect for being circulated to the area officers (CPS, 2009). Prosecution Now that Hilda’s husband Billy, the perpetrator has already been arrested, the following pages will discuss how the Crown Prosecution Service (CPC) will proceed with prosecution and help victims through prosecution. The guidance document of the CPS is of particular use for legal professionals supporting victims of domestic violence. The CPS has been entrusted with the prosecution of cases probed by the enforcement agency who are responsible for investigating the allegations of domestic violence and collection of evidence. Billy has been arrested as is necessary in a domestic violence case to safeguard the victims who may be vulnerable with children from any further injury. CPS has the mandate to decide on a suspect being charged with and the nature of charges. Police refers cases suspected of domestic violence to CPS for deciding on prosecution or otherwise. CPS is not the legal representative of victims and not authorised to act on their behalf but must be concerned with their safety and support besides considering their views. Thus, CPS initiates prosecutions for domestic violence on State’s behalf. In case of the CPS deciding against prosecution, it will inform victim of the decision based on evidence furnished by the police along with reasons (CPS, 2009). Victim’s Safety CPS will send letter to vulnerable victim or intimidated witnesses informing the decision to prosecute or otherwise within 24 hours of taking a decision and five days in all others. This is with the view to ensure victim’s safety arising out of the decisions. And it is also to ensure that victim avails of support services at the earliest. The CPS may also arrange a meeting with the victim to explain its decision. CPS decision is independent of the police’s decision and CPS has published on its website how decisions are reached. The prosecution decision involves two stages in the application of Full Code Test which is a public document (CPS, 2009). The Evidential Stage The prosecution must satisfy itself with the adequacy of the evidence that can ensure conviction of the defendant Billy on each charge so that a jury or a bench of magistrates or alone judge shall properly decide in accordance with law in convicting the defendant. The test by CPS, which it adopts for deciding on a prosecuting or acting otherwise, is different from the test applied by the court for convicting the defendant. The evidence that CPS provides before the court must be of high standard of proof as otherwise it will not result in convictions. If the evidential stage of the two pronged tests is not passed, the CPS should not proceed regardless of the importance and seriousness of the case (CPS, 2009) “The Public Interest Stage” Once, the case passes the evidentiary stage, CPS must decide if the prosecution will be in public interest. As such the norm is that the grounds against prosecution should outweigh those in favour. Paragraphs 5.12 of the Code say that the CPS should take into consideration “the consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim or the victim’s family” (Code for Crown Prosecutors) (p16). CPS would seriously weigh the concerns of the victim while so deciding. However, the victim’s interests and views are not final as the CPS must prosecute based on the larger interests of public than that of a particular individual and there can be difficulties encountered in striking a balance (CPS, 2009). “The Threshold Test Stage” This test is applied when CPS’ application of “the Full Code Test” is not practicable in view of all evidences not being available and grant of bail to the arrested person is not advisable when a charging decision is made. Thus, with an incomplete investigation, Crown Prosecution Service can have this test in these situations: 1) Full evidence is not available justifying application of the Full Code Test; 2) There is a probability of better evidence becoming available within a reasonable time; 3) The seriousness of the charge is such that immediate charging is warranted; 4) There are reasons to reject bail. The “threshold Test” must be under continuous review so as to apply the “Full Code Test” as and when possible (CPS, 2009, p. 16). Sufficiency of Evidence for Prosecution The CPS will coordinate with the police to for an early gathering of all possible evidences such as “999 tapes, witness statements of neighbours, healthcare professionals, children, and others, CCTV footage, forensic evidence, damaged and displaced furniture and injuries sustained” (CPS, 2009, p. 18) for being considered to arrive at a decision for an effective progress of the trial at the court. CPS will also be advised to take guidance from the ACPO 2008 and 2009 guidance on Domestic Abuse Investigation and Stalking and Harassment documents (ACPO, 2008; ACPO, 2009). Although the victim’s statement in the court or statement to the police can form evidence, it cannot be the sole evidence to prove the case. As such CPS will endeavour to collect more evidence such as statements of friends, neighbours, children as stated above to strengthen the case as they can give direct evidence as to scene of occurrence, apart from hearsay evidence from others. Besides, medical evidence from the hospital where the victim underwent treatment will also be relied upon. The defendant’s antecedents, such as past behaviour, convictions or cautions, can also be relied upon. As the incident of domestic violence occurs in private, victim will be asked to tender evidence in court unless the defendant pleads guilty and there is other supporting evidence. Since victim may fear of repercussions from the defendant, there must be moral support and support services from domestic violence specialists made available to the victim (CPS, 2009, pp. 18-20). It must be now clear that CPS will not venture prosecution without sufficient evidence and if prosecution is in not public interest. Victim’s Withdrawal of Support In the event of victim’s advice to police not to pursue the case due to hesitation to give evidence, the prosecution cannot be aborted without assessment of the situation by the CPS. CPS can apply to court to defer proceedings to facilitate further factual investigation and arrive at a decision keeping in mind the risks to the vulnerable persons such as victim, children, young people and others. For this purpose, the CPS will make sure that the case is in the hands of an experienced prosecutor besides asking police to make enquiries especially if the defendant informs the victim’s desire to do so as it would amount to breach of bail conditions by the defendant. On the contrary, if the victim herself confirms in writing about the decision not to proceed, police will be asked to ensure that the statement contains reasons for withdrawal and it is not made under pressure. Police will also be asked to provide their own opinion besides asking them to ensure necessary support is available to the victim. The CPS will also consider if it is possible to continue the case without the victim’s evidence (CPS, 2009, p. 20). If the CPS is convinced that victim has asked to withdraw for extraneous reasons, prosecution can still continue the case in public interest and also if other evidences than that of victim is available. However, if the case must be continued with the evidence of the victim to prove the case, CPS will decide whether victim’s statement can be used without her tendering evidence in person, help victim to attend the court through special precautions or order the victim to tender evidence in court against her wishes (CPS, 2009, p. 23). Public Interest In order to decide to proceed with the case in public interest in spite of victim’s desire not to do so, the CPS will take into consideration of the various factors such as seriousness of the offence, extent of injuries sustained by the victim, use of any weapon by the defendant, his prior threats, possibility of a planned assault, presence of children in the family, assault having been committed in their presence, likelihood of the defendant repeating the offence, breach of any court orders by the defendant and his past criminal history (CPS, 2009, p. 27). Post Evidentiary Stage If the victim agrees to tender evidence, the CPS will prosecute even though the injuries are minor and there has been reconciliation between the victim and defendant. Police will be asked to take necessary measures for the victim and her family’s support following a conviction of the defendant (CPS, 2009, p. 27). Bail The defendant will be released on bail once the charge with an offence has been made or will be kept in custody without bail except for attending courts or brought to court under custody. Bail is a right available to the defendant. But it can be refused if the court is convinced that defendant will commit an offence while on bail or will influence the witness or otherwise obstruct administration of justice. Bail can also be refused if the defendant has committed another serious offence or if his own safety is under threat. Magistrates are required to give reasons for granting or refusing bail failing which the CPS can demand explanations. CPS can insist on the court’s imposing certain bail conditions to ensure victim and children’s safety so that they can go to work and school without hindrance (CPS, 2009, pp. 29-30). Billy is most likely to be charged with the offences of “assault, harassment, criminal damage or threatening behaviour” (CPS, 2010, p. 4) and attempt to murder directed at both his wife Hilda and the nurse. Good Practice Specialist Domestic Violence Courts (SDVCs) established across England and Wales have proved to be effective in improved prosecutions, victim’s active involvement in the conduct of cases, ensuring victim’s safety and enhancing public confidence (CPS, 2005, p. 11). Expert witnesses Domestic violence expert witnesses’ testimony can be preferred at trial although the prosecutors view the testimony with scepticism as the court has held it to be inadmissible in Turner case (1975). However, expert witnesses can be engaged in the following situations: 1) Retraction of prior statement by the victim; 2) Victim’s playing down the severity of crime committed by the perpetrator; 3) Victim’s contradictory statements relating the defendant’s crime. 4. Victim’s reluctance to testify against the defendant; 5) Victim disappearance before the trail commencement; 6) Victim’s withdrawal of support for the prosecution; 7) Victim’s remaining in relationship with the perpetrator; 8) Diversity /equality issues (Dempsey, 2004, p. 9). Conclusion The above are the major implications for the prosecution of the defendant. The victim Hilda’s present condition is unknown. It may improve, deteriorate or she may even die. Same is the case with the nurse assaulted by Billy. In any case, it is highly unlikely for the prosecution to decide against even if Hilda wishes to drop the proceeding as Billy has assaulted the nurse which will attract charging him under a different category than domestic violence. And the CPS is most likely to satisfy the tests prescribed by the code since injury sustained by the victim and the nurse and the hospital records are evident enough. References ACPO. 2008. Guidance on Investigating Domestic Abuse. London: Association of Chief Police Officers. ACPO. 2009. Guidance on Stalking and Harassment . London: Association of Chief Police Officers . CPS. 2009. CPS Policy for Prosecuting Cases of Domestic Violence . London: CPS Communication Division. CPS. 2010. Domestic Violence : Frequently Asked Questions. London : CPS Communication Division . CPS. 2005. Domestic Violence : Good Practice Guidance . London : CPS National Domestic Violence Implementation Team (NDVIT). Dempsey, M. M. 2004. The Use of Expert Witnesses Testimony in the Prosecution of Domestic Violence. London : CPS. Gov.UK. 2012. Domestic Violence Crimes and Victims (Amendment) Act 2012. Retrieved December 16, 2012, from www.legislation.gov.uk/ukpga/2012/4/contents/enacted Gov.UK. 2004. Domestic Violent Crimes and Victims Act. Chapter 28. Retrieved December 16, 2012, from www.legislation.gov.uk/ukpga/2004/28 Miles, J., & Harris-Short, S. 2011. Family Law Text, Cases and Materails . Oxford: Oxford Universisty Press. R v Turner , 1 AII ER 70 (1975). Read More