Domestic Violence & Reluctant Witnesses

Historically, the police would have been less likely to involve themselves in domestic cases. Often when dealing with complaints they would leave the address putting both parties back in the same position. However, the Crown Prosecution Service (CPS) and the Criminal Courts now view domestic violence cases with zero tolerance. 2015 introduced a specialist domestic violence court, which only deals with domestic violence cases and is based in Liverpool.

Domestic violence cases are complex. In a criminal trial the evidence is tested under cross-examination by both the defence and prosecution solicitors. However, recent changes in the law, namely the case of R v Barnaby 2015, has made the process of challenging evidence more difficult.

In this case the complainant was a victim of domestic violence and it was reported that there were previous allegations made by her that she subsequently retracted. The complainant made a series of calls to the police reporting the assault and when the police attended on her, the defendant had left the address and the complainant refused to make a statement of complaint.

It is important to note that during the course of Barnaby’s trial, the complainant was never called as a witness meaning the prosecution was based on hearsay evidence, which included a telephone call made to the police and the complainant’s comments to the police officers when they responded to her call.

As a result of this the defendant’s solicitor could not test her credibility, something which fundamentally goes against the previous rules of evidence which means that someone accused of a criminal offence of this nature will seriously struggle to challenge the prosecution’s case against them.

The media headlines featuring Premier League Star Danny Simpson, who was found guilty of assaulting his ex-partner, Stephanie Ward, earlier this year further demonstrates how this change in law impacts on the prosecution.

In this case the police attended the complainants address after a 999 call was made. An officer observed the defendant knelt over her on the floor with his hands around her neck. However, Ward did not support the prosecution and was not a witness in the case.

The prosecution continued and was based on hearsay and the police officers observations. Danny Simpson was convicted despite the victim refusing to give evidence against him.

Given the difficulty of securing convictions in relation to domestic violence the Barnaby case has been largely welcomed as victims of domestic violence are often very vulnerable and reluctant to come to court. However, concerns have been raised in relation to the possible absence of witness based evidence during a trial.

In any criminal trial, evidence plays a critical role in establishing fact and allowing members of a jury to make an informed opinion. When trials proceed without a victim there is a real danger for a potentially innocent person to be convicted as the evidence against them cannot be fully tested and challenged in the normal way. The courts will never see the victim, hear evidence being tested in cross-examination nor will they be able to assess credibility.

If these cases highlight anything it’s the importance of representation at the police station at an early stage when issues as per the R v Barnaby case can be advised upon from the outset.