Problems of proof in Domestic Violence cases

Posted on Monday September 14, 2020

Establishing the precise truth in a domestic abuse case can be very difficult.

Whilst the case of Johnny Depp and The Sun wasn’t directly in relation to a punishment for someone alleged to have committed domestic abuse, it has been particularly evident in allegations that he had been abusive to his now ex-wife Amber Heard.

Four weeks of courtroom investigations aided by first-class lawyers examining evidence passed and the precise truth of what happened is, in reality, still no clearer.

The way in which these cases are dealt with was also highlighted in the fictional story of Geoff and Yasmeen in the ITV soap, Coronation Street, where Yasmeen languished in prison having assaulted Geoff when she got to the point where she could tolerate his behaviour no more.

Police and prosecutors should use the ‘Joint Evidence Checklist’ (‘Checklist’) to gather evidence and build a case. The Checklist ensures that the police and prosecutors capture all evidence relevant to the case, rather than focusing solely on the evidence of complainants. However, the Checklist should not be seen as an exhaustive list of evidential opportunities.

Domestic abuse incidents often take place in private and the complainant may be the only witness thus making the task of discovering the truth challenging. Prosecutors may be presented with conflicting accounts with each party claiming to be the victim. In such a situation, prosecutors are able to provide investigative advice to the police and ask for any additional information to assist them. The police must conduct a thorough investigation by exploring the nature of the relationship between the parties, the context of the offence, any previous allegations/convictions of either party and whether there are any other factors at play which may impact on an allegation, such as family proceedings.

Where a domestic abuse incident has taken place in private and the complainant is the only witness it can, understandably, be very difficult to identify the offender. However, this does not mean that the evidence gathering process cannot be improved to make the task of identifying the offender easier. In fact, Her Majesty’s Crown Prosecution Service Inspectorate (‘HMCPSI’) has produced a detailed report presenting evidence of issues to address, some of which are referred to below.

The domestic abuse caseload has increased by 88 per cent against the backdrop of a 25 per cent reduction in funding.  The figures have also significantly increased during lockdown. This means both investigators and prosecutors are stretched, resulting in difficult decisions about priorities. HMCPSI also found that there are no procedures in place at the Crown Prosecution Service (CPS) or police to ensure that necessary training is being undertaken. The CPS and police have also been criticised for ‘routinely failing’ to disclose evidence.

The attitude of both organisations towards the importance of evidence, the lack of resources and training are key setbacks when the Court is trying to determine the truth in a domestic abuse case.

Obviously and whilst easily said, it is always best if someone finds themselves in such a situation to take themselves out of the relationship or the environment and seek protection either from the police or using the civil or family law remedies.

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