Case Study of a Domestic Abuse Case

What is Domestic Abuse?

Domestic abuse is not covered by one single offence in the UK and is instead prosecuted through a number of different offences, whether relating to violent or non-violent offences. Regardless of the type of offence, domestic abuse cases are always treated very seriously by the police and the courts and can carry significant custodial sentences. Domestic abuse cases can range from minor assaults (which is likely to result in a Community Penalty) to controlling and coercive behaviour (which can carry a sentence of up to 5 years imprisonment) or worse.

It is common to see cases where the police have been called in during an argument but, after a period of separation, the complainant no longer wishes to support any police action. Despite the complainant’s desire to withdraw their support for a prosecution, such cases can often lead to consequences which were not foreseen when the allegation was initially made.

‘Pressing Charges’

There is often confusion with these cases, emanating from both the complainant and the accused, that without a supportive complainant, or without ‘pressing charges’, the case can go no further. However, in the UK, it is not possible for a complainant to ‘press charges’. Once an allegation has been made to the police, the police are duty bound to investigate it and they will do what they can to obtain and preserve evidence to support the allegation and to reach an evidential threshold where they believe there is a reasonable prospect of conviction. It is therefore a decision for either the police or, in more serious or complicated cases, for the Crown Prosecution Service, as to whether or not a case can be discontinued. Therefore, just because a complainant no longer wishes to support their allegation, this does not mean that the case will be automatically dropped. As a result, even without a supportive complainant, it is possible for a case to be under investigation for a significant number of months, for bail conditions to be in place, to have no contact with the complainant for the duration of this time and, in some cases, the alleged defendant can even be charged and taken to court.

Case Study:

In a recent case conducted by Old Bailey Solicitors, our client faced precisely this situation.   Even without a supporting complainant, the case still proceeded to the crown court and a date for trial was set. However, after diligent efforts to question and undermine the admissibility of Prosecution evidence, the case was eventually discontinued.

In this case, our client was charged with assault by beating and intentional strangulation after an allegation was made to the police following a heated marital argument, exacerbated by the consumption of alcohol.  The police were called and our client was arrested and interviewed.  He provided a clear account in interview, denying the allegations.  It then became clear that the complainant no longer wished to support the allegation she had initially made. However, despite this, the case continued for a number of months, with conditions in place for the client to not have any contact with the non-supportive complainant. While these bail conditions were eventually dropped at the request of the complainant, our client was still charged with criminal offences and the case proceeded to court. Even without the support of the complainant, the Crown Prosecution continued with the prosecution.  Their case rested on comments made by the complainant to the police when they attended the incident scene.   The case proceeded to Crown Court and a trial date was set.

It was only after diligent applications were made to the Court, by the appointed barrister as instructed by Old Bailey Solicitors, on the admissibility of evidence under the rules relating to ‘hearsay’ evidence that the case was eventually discontinued.

Hearsay Evidence and Res Gestae

Hearsay evidence is any ‘second hand’ evidence, a simple example being a statement based on what an individual has heard from another person rather than on direct personal knowledge or experience. In most criminal proceedings, hearsay evidence is not admissible in court, because the usual level of scrutiny is lost as the first-hand witness will not be able to be cross-examined or assessed by the jury. It is therefore only possible for ‘hearsay’ evidence to be admitted in court under specific categories set out in the Criminal Justice Act 2003.

One of these categories refers to the principle of res gestae. Under this principle, ‘hearsay’ evidence can become admissible on the basis of one of the following:

• The hearsay evidence was made when a person was so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded
• Statements accompanying an act which can only be properly evaluated in conjunction with the statement
• Statements relating to physical or mental state

This means that hearsay evidence can be made admissible if the prosecution can argue that the possibility of concoction or distortion of the hearsay account can be disregarded due to the complainant having been so emotionally overpowered at the time of providing the statement.

The prosecution in this case therefore attempted to admit the ‘hearsay’ evidence of the complainant under the principle of res gestae by arguing that the transcript and recording of the 999 call and the body worn video of the responding officers could be admitted as evidence as the possibility of concoction or distortion could be disregarded due to the complainant being overpowered with emotion when these statements were made.

Despite the Crown’s attempt to admit this evidence, we at Old Bailey Solicitors submitted our own representations to the court arguing that the “res gestae” exception did not apply in this case. We argued that both the 999 call and the body worn video evidence had been made too far after the alleged commission of the offence, and therefore the chances of concoction or distortion could not be ruled out. We also argued that the complainant made frequent references to other concerns such as upcoming family holidays and concerns about whether or not these trips would be able to go ahead if there was an ongoing police matter, showing that the complainant was not completely overpowered by emotions and that concoction or distortion could therefore again not be ruled out.

On the basis of these representation submitted to the Court by Old Bailey Solicitors, the Judge ruled that this evidence was not admissible. As a result, the Crown was forced to offer no evidence and the case was discontinued.

Although Old Bailey Solicitors were able to obtain the correct result in this case, it provides a clear example of the need to obtain informed legal representation for cases involving domestic abuse even where the complainant is not supporting the case. Without assistance from a specialist lawyer, cases can persist for significant periods of time and can even result in charges being brought and convictions received in cases where the complainant is no longer supporting.

In the above case study, had the case continued to trial and the client been convicted, the starting point for sentence would have been an 18-month custodial sentence.

It is therefore important to ensure that you have the right legal representation for your case, even if you believe it is ‘going nowhere.’ It is important to remember that once an incident has been reported to the police, they are duty bound to investigate and, in some instances, it may even be possible for the case to proceed to trial without a supportive complainant.

If you are facing a domestic abuse allegation, Old Bailey Solicitors has the experience and resources you need for your case.  Contact Old Bailey Solicitors on 0207 8464 999 or at [email protected].