Prosecution strategies in AR cases (1)

A two-part series from Laura Hoyano and John Riley modelling investigation and prosecution strategies in cases of abusive relationship offending. Part one of this worked case example shows the typical challenges, tactics to surmount them, and the need for innovative thinking


Recently, a seismic shift has occurred in the way the police, society, and ultimately the courts approach abusive relationship (AR) cases, a term more richly descriptive than domestic violence. The willingness of victims to speak out – such as Rosie Duffield MP in Parliament (02.10.19), and the author of the article ‘“I was completely trapped”: a shocking story of coercive control…’ (Sunday Times 01.03.20) – is crucial to our understanding of the pernicious effect of ARs on individuals, families, and wider society.

The lessons such harrowing accounts offer include more effective investigative modelling, preparation, and presentation of court cases. The challenges to getting past half time to conviction are especially great where the complainant is reluctant to cooperate with, or even actively hostile to, the prosecution. This creates an uneasy paradox – the state, rather than the abusive defendant, takes control of the complainant’s fate – but this time it is to free her from abusive harm and control.

The House of Commons gave Third Reading to the Domestic Abuse Bill on 7 July 2020. The Director of Public Prosecutions, Max Hill QC told the Justice Committee on 21 May (at 10.05) that AR constituted 13.6% of pre-COVID total CPS casework; however, referrals of domestic-flagged cases from the police to the CPS for charging decisions fell by 11% from March 2018 to March 2019 (ONS: Domestic Abuse and the Criminal Justice System, England and Wales: November 2019), with only 308 convictions under s 76 of the Serious Crime Act 2015 (SCA 2015).

Many more AR charges under s 76, SCA 2015 and the Offences Against the Person Act 1861 are anticipated as a consequence of lockdown. The Home Affairs Select Committee on 27 April: ‘[a] global surge in domestic abuse has been reported during the coronavirus pandemic, as those living with domestic violence face greater risks at home during lockdowns, and support services are harder to reach and to provide’, and that in the UK ‘calls and contacts to helplines have increased markedly’; ‘incidents are becoming more complex and serious, with higher levels of physical violence and coercive control’ (Home Office Preparedness for Covid-19 (Coronavirus): domestic abuse and risks of harm within the home). The Committee called for ‘a strong criminal justice response’. The police and CPS undertook to prioritise domestic abuse protection during the pandemic.

In this two-part series we describe one recent case (with CPS permission) to delineate the typical challenges for investigators and prosecutors, and tactics to surmount them. The first describes the dynamics of AR, and investigation strategies to build the prosecution case which cannot rely principally, or possibly at all, on the complainant. The second addresses trial issues, including handling the complainant as a hostile witness, and educating the jury.

The deeply affected complainant (C) demonstrated all the oppositional behaviours prosecutors could expect, and more not expected at all. This included making frequent complaints to the police of violence and coercive behaviour, only to withdraw them, and repeatedly breaching witness summonses. Ultimately, she was placed into custody to ensure that she would testify (a move very reluctantly taken by the court).

C’s family reported that, before entering the AR, notwithstanding some alcohol abuse, C was a high-functioning, proud, and sociable woman who looked after herself, maintained positive relationships, had a good job, and led a happy existence.

C took in a lodger, ‘D’, who soon became her partner and ‘the love of her life’. D quickly displayed controlling, jealous behaviour. He humiliatingly examined her body to ensure she had not ‘been with’ other men, confiscated her credit and debit cards, and obsessively monitored her telephone contacts. He followed her to meetings with friends and insisted on being present when she saw family. She reduced contact with others, increasing her isolation and reliance on him. C lied to her worried family about events and the relationship. D was sporadically violent towards C, frequently making threats. C remained committed because she loved him, believing he would change for her, and that, when not affected by alcohol or drugs, he was ‘… the best… lovely’. To outsiders, D was ‘a really nice man’. The loyalty born of a deep emotional investment in a partner, even one who turns abusive, made C reluctant to ‘destroy’ D. These are all typical examples of defendants’ coercive behaviour, and victims’ counterintuitive compensatory responses, to the extent of losing agency to protect themselves.

Twice D seriously assaulted C, causing fractures and a significant wound (indicted as s 20 (OAPA 1861) offences). C lied about each event, to family, friends, doctors, and police, and eventually to the jury. C blamed herself: ‘I drove him to it… it wasn’t his fault, it was mine…’

The police took out Domestic Violence Protection Orders against D which he breached. On release from brief imprisonment, D went to C’s home and assaulted her again, threatening greater harm. C fled, calling the police yet again. D was arrested, and so began a challenging investigation and prosecution.

The effects of AR can cause reluctance to work with professionals in modelling a case to address and prevent the abuse. The investigating police officer, CPS lawyer, and prosecution counsel, need to understand the dynamics between intimate partners and complainants’ feelings of loss, failure, low self-esteem, and counterintuitive behaviours. They may deliberately provide contradictory accounts to attempt to stop proceedings. The CPS’s position on whether to proceed against the complainant’s wishes is more nuanced than the media reported following the suicide of celebrity Caroline Flack, but their power to do so is undoubted, as reflected in the Domestic Abuse Bill (cl 21(4) where Domestic Abuse Protection Notices – like Domestic Violence Prevention Notices and Orders under the Crime and Security Act 2010 ss 24(5), 28(5) – may be issued against the wishes of the person protected (see the CPS Domestic Abuse Guidelines for Prosecutors and Controlling or Coercive Behaviour in an Intimate or Family Relationship).

It is critical that the police seek early investigative advice from the CPS, that suitably experienced AR trial counsel be instructed, and that an early tactical evidence-gathering conference be held, to lay a clear evidence path. Investigators need to adopt a ‘target’ approach: start from the outside and work inwards towards the complainant, building a strong model of complainant behaviour, especially where counterintuitive, to make non-cooperation explicable as the consequence of abuse.

Police should expand their investigation to those closest to the complainant, looking for behavioural changes. C’s family provided compelling testimony of her dramatic change during her association with D. Family, friends, and work colleagues (or teachers where children are affected) may be valuable sources of information, including displays of anxiety, admissions of being fearful about events at home, or other comments indicative of underlying abuse. Where there is injury, causal evidence from doctors is often essential to counter complainants’ excuses about ‘accidents’.

The measures and prosecutorial tactics deployed in this case were varied and needed some innovative thinking to get the case off the ground at all. The capacity of the police, CPS, and the court, to be as flexible as possible within the evidential and practice rules was crucial, ultimately leading to conviction.

The AR confiscates the victim’s life, and personhood. These are cases with a high risk of repetition, and escalation, of offending. This scenario needs to be painted for the jury.

'Prosecution strategies in AR cases (2)' will appear in the September 2020 issue of Counsel

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Laura Hoyano

Laura Hoyano is a tenant at Red Lion Chambers (London) and Associate Professor of Law at Oxford University. She is the author of the special measures chapter in Blackstone’s, and author of Hoyano & Keenan’s Child Abuse Law and Policy across Boundaries (2020: forthcoming edition).

John Riley

John Riley is a barrister at 23 Essex Street Chambers. Called in 1983 and having been in the CPS from 1986-91, John has long experience of prosecuting and defending a wide range of criminal cases and is regularly instructed in some of the most sensitive criminal cases. He specialises in serious sexual cases, vulnerable witness and abusive relationship cases, and prosecuted the case described in this article.