Domestic violence : practical problems and legal hurdles for the Defendant
In part one of our guide we looked at what domestic violence is and the tests that are applied when the decision is made to prosecute. This part of our guide looks at some of the practical problems that you will encounter if charged with a domestic violence offence . We will also look at some of the legal hurdles that you will face.
Going to court
When the case goes to court you will be given a date to appear. You will hopefully be released on bail but if not you will be remanded in custody. If so the court will decide if you are to be given bail. When appearing in court you will be asked if you admit the alleged offence or deny it. Depending seriousness of the case, it will be heard at either a magistrates’ court or the Crown Court.
If you plead guilty, the case may be put off to another date for reports to be prepared by the Probation Service or it may be dealt with there and then. If you have pleaded not guilty, a trial date will be set. At the trial, evidence will be heard by the court. Witnesses will need to come to court to give their evidence in person, although in some cases evidence can be read out.
But will I get bail?
If the Police decide not to give you bail when charged the Crown Prosecution Service (CPS ) may try to persuade the court that you should remain in custody. They may seek to argue any of the following:
- That you should stay in custody to protect the alleged victim;
- or any other witnesses; or
- to stop further offences from being committed; or
- If there are grounds to believe that you would not answer your bail ; or
- If there are grounds to believe that you would interfere with witnesses
The court will decide whether or not you are to be given bail. Your legal representative, should you choose to instruct one, can speak on your behalf to try and persuade the court to grant bail. If you do get bail it will usually be with conditions attached which will almost always include a condition of none contact by you or anyone acting on your behalf. The wording will be something like : ‘”not to contact by self servant or agent”
What if I do not stick to my bail because my partner wants to be with me ?
It is important to understand that the conditions of bail attach to you and not your partner. If he or she sends a message , speaks to you or approaches you in any way you must not agree to any form of contact. Examples might be:
- I receive a text message from my partner and read it – You have not breached your bail
- I receive a text message from my partner and replay to it – You have breached your bail
- My partner crosses the road when she/he sees me and speaks to me. I ignore him/her – you have not breached your bail
- My partner crosses the road when she/he sees me and speaks to me. I stop and talk to him/her – you have breached you bail
- Unknown to me my Mother contacts my partner to talk about the problem – you have not breached your bail
- I ask my Mother to contact my partner to talk about the problem – you have breached your bail because the condition of bail will be not to contact “by self , servant or agent”
If you breach your bail conditions the police can arrest you and you will be brought before the court again. The court might then remand you in custody until the end of the case.
What if the alleged victim does not want to attend court or want to make another statement?
If the alleged victim decides that she/he does not want to attend court or make another statement, it does not mean that the case will automatically be stopped. Instead the CPS will want to find out why. They will then make a decision about what action to take. In some circumstances the CPS my apply to the court for a witness summons to try to make the alleged victim attend court against his/her wishes.
Can the case continue without the alleged victim?
Yes. If the CPS take the view that they have sufficient evidence to proceed. They will probably decide to continue without relying on the evidence from the person who is said to be the victim .
In the next article we will look at some of the issues surrounding the consequences if convicted and in a later article we will examine issues surrounding a trial if you plead not guilty.
If you are faced with a domestic violence charge or you are under investigation by the police we are happy to give you an initial consultation if you contact us free of charge or obligation .
Rose & Dunn are specialist criminal defence and motoring law solicitors and higher courts advocates. We can be contacted at any time of day or night. If you need emergency police station assistance contact us using any of the methods below and we will get back to you as soon as possible.