Domestic violence: victimless crime?

Domestic violence prosecutions where there is no ‘victim’  

Is this possible? 

The answer is yes. 

You can be charged and convicted for a so called victimless prosecution. This is where there  is no evidence from the alleged victim. 

The circumstances where this can arise is likely to be when an alleged victim is: 

 a) unwilling to give evidence, and 

 b) it is in the public interest to continue with the prosecution without the victim. 

A frequent common public interest factor is where  a successful prosecution is likely to protect the victim from further abuse.

But how can I be convicted for  a “victimless prosecution”, don’t they have to prove I am guilty beyond reasonable doubt? 

Yes they do. The plan will be to use whatever other evidence might be available which can include hearsay and third party evidence. 

Hearsay is second hand evidence. It is not normally allowed but there are exceptions to that rule. It amounts to: 

• an oral or written statement;
• made by a person who is not a witness;
• that is given in evidence by a third party;
• that is relied upon as proof of the original statement.
• In the Saunders trial, medical professionals (i.e. third parties) were able to give evidence of the defendant’s conduct that had been relayed to them by his victim.

To get around the basic rule that it is not allowed the prosecution will have to make an  application to the court for permission. 

There are other forms of hearsay In addition to the third party variety such as :

• Complainant Hearsay. Typically this would be where an initial complaint is made to the police but the alleged victim later withdraws his/her statement.

The court will only allow this type of hearsay evidence  if:

• the prosecution and defence agree to the admission of the evidence;
• it is in the interest of justice to do so;
• one of a number of common law exceptions apply; or
• there is a statutory provision under the Criminal Justice Act 2003 making the hearsay statement admissible.

Generally speaking, the factors the Court will need to consider are:

• the statement’s probative value to a matter in issue;
• the circumstances in which the statement was made;
• the reliability of the maker of the statement;
• the reliability of the evidence of the making of the statement itself;
• whether oral evidence of it can be given; and
• if oral evidence cannot be given, why it cannot be given.
• Res Gestae

What is Res Gesta? 

This is a fancy Latin phrase which  translated means “things done”. In reality it is a rule that allows for the admission of statements made by the alleged victim or a witness to a third party, on or around the time that an offence was allegedly committed.

The statement must be very closely  linked to the events at the same time. This is to ensure that it would be unlikely that they were distorted or concocted. These statements  may be allowed other than as hearsay.

This is often used to allow evidence from 999 calls or things said to police officers immediately after the alleged offence takes place 

So this is the commonly used toolkit for a prosecutor faced with the prospect of a  domestic violence prosecutions where the alleged victim is unwilling to give evidence because of  fear or another reason, and where it is in the public interest to prosecute.

Witness Summons

If an alleged victim has given a statement but  is unwilling to attend court, a witness summons requiring her/him to attend court can be applied for. This should  only be done if it considered that the case can only succeed with the alleged victims evidence. The prosecution can not however guarantee that the reluctant witness will give the same evidence.

Additional ways to help prove the case 

This is most likely to be:

• Photos of injuries, 
• Evidence of or a disposition towards misconduct (known as “bad character” evidence),
• Silence in police interviews to prove its case without the support of a victim.
• Any admissions made during a police interview
• Statements uttered by you to police officers in their presence – known as ‘significant statements’

So what can I do about all of this so called evidence? 

In addition to making your case in court and challenging the available evidence you should also ensure that your legal representative tries to object to this kind of  evidence being allowed. This can be done in a number of ways: 

• Challenge the continuity. Continuity is about the movement of something from one place to another. The issue will be  can the point A item be proven to be the same thing as the point B item? One scenario might be a challenge to the integrity of the evidence because the item might have been contaminated. If the continuity of the evidence is disputed by the defence it has to be proven beyond reasonable doubt. 

• Section 78 PACE 1984 application

Even if hearsay evidence is allowed to be admissible by the court it still has a discretion to exclude it under s.78 of the Police and Criminal Evidence Act 1984.

This is usually after an application by the defence. The common grounds for making such an application might be where there would be difficulties for the defendant in challenging the statement without the person who made that statement being present to be challenged by way of cross examination. The following factors should be considered by the defence: 

• If it were true, how good is the quality of the statement in helping to prove or understand the case or ?
• what other evidence is there on the same matter? 
• how important is it to the case as a whole? 
• What are the circumstances in which the statement was made? 
• how reliable is the person making the statement? 
•  how reliable the evidence of the making of the statement appears to be;
• Can oral evidence be given?  If it can not not, why? 
•  How difficult will it be to challenge  the statement and the extent to which that difficulty would be likely to prejudice the party facing it?

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.