Prosecution strategies in AR cases (2)

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A two-part series from Laura Hoyano and John Riley modelling investigation and prosecution strategies in cases of abusive relationship offending: part two of this worked case example looks at the issues arising at trial

In part one we described the dynamics of an abusive relationship (AR), and the investigation and prosecution strategy in building a case of violence and coercive behaviour against a previously confident and high-functioning woman. Here we address trial issues.

The indictment

Prosecutors selected charges covering the six-month relationship that distinguished between the coercive and controlling behaviour offence (s 76(1) Serious Crime Act 2015) and the standout s 20 OAPA offences, a broken jaw and wounding. Emotional and financial manipulation can contribute to keeping C under the abuser’s control as much as fear and infliction of violence, although she may attempt to justify it as normal.

The Crown set out a compendium of D’s abusive behaviours, including minor assaults, under the s 76(1) offence. Jurors were directed to consider separately the s 20 offences and the s 76(1) offence (affording consecutive sentencing powers for each).

Dealing with the complainant

C was determined to frustrate the prosecution and halt the trial process. So conflicted was she about protecting herself and maintaining her idealised relationship, that her actions were exceptionally counterintuitive and needed careful prosecutorial confrontation. They were used by the Crown to demonstrate how she had been abused, in a robust presentation strategy.

C made three witness statements. One summarised all of D’s abusive behaviour. A second dealt specifically with the violent offences and a third read in part:

‘…. Everything I said in my other two statements is true but I do not want to come to court, I will not give evidence, I do not want this case to proceed…’

C texted the Officer in the Case (OIC) that she had lied and the accusations were false. She gave six versions of events about violent acts against her, including wholly implausible explanations of her injuries.

Eventually, arrest proved necessary to ensure her attendance, and she testified from prison over a TV link to the trial court. Crown Prosecution Service (CPS) guidance states that this should be adopted only as ‘a last resort’, enumerating risk factors (Domestic Abuse Guidelines for Prosecutors).

At trial, examination-in-chief was an enormous struggle, frequently punctuated by outbursts, walk-outs, and condemnation of the OIC and the process. C’s statements were put to her as memory-refreshing documents; ignoring them, she denied anything had happened. The Crown successfully applied to make C a hostile witness. Each statement was gone through in detail, and C confirmed that each accurately depicted the relationship. The process of taking C through her accusatory statements line by line, as a hostile witness, and the struggle she had in facing her own account, was a compelling evidential exercise for the jury, enabling the Crown to contrast her denials with the reality of her complaints.

It is unusual for counsel to have experience of having a witness declared hostile under the Criminal Procedure Act 1865 s 3, or the common law (Thompson [1976] 64 Crim App R 96) with the practical consequences for the ensuing examination (cf BCP F6.47ff). This procedure is increasingly required in AR cases. It should be reviewed in conference with the CPS, and counsel should consider how this process fits in with and complements the rest of the evidence.

Cross-examination in person

Another feature of coercive control may be that D chooses to represent himself, to cross-examine C personally (or that may be the result of denial of legal aid). Regrettably the Domestic Violence Bill prohibits cross-examination in person only in family and civil proceedings; only if sexual assault is charged as a feature of the AR will it be absolutely prohibited (Youth Justice and Criminal Evidence Act 1999 (YJCEA) s 34). There are four difficulties with relying upon the discretionary power under YJCEA s 36: the Crown must be proactive in making the application (current CPS domestic violence guidance makes no reference to the risk of unrepresented defendants); exercise of the power is subject to a complex tripartite test; the direction’s implications are significant for defence rights, and evidence pertaining to the statutory factors is likely to emerge only at trial, so a court may be reluctant to make a pre-trial direction; and a trial judge might wait to see if C becomes distressed by being cross-examined by D, by which time it may be too late.

We have proposed that the Bill be amended to insert an absolute prohibition in criminal proceedings where the Crown’s case meets the statutory test for domestic abuse. Failing that, CPS guidance should require prosecutors to make early applications wherever there is a risk of nonrepresentation, to reassure complainants.

Opening and closing speeches

By analogy to the ‘rape myth experience’, the Crown in Opening and Closing, with the trial judge’s permission, made observations concerning ‘common perceptions and expectations’ of a complainant in an AR. There are many behaviours by AR complainants, substantiated as typical by research, which jurors may find difficult to accept, eg:

  • reactions to violence (it was just an accident);
  • reactions to the threat of violence and fear (he will change, he loves me);
  • fear for or protection of children (I put up with it for the sake of the children);
  • failure to perceive the insidious confiscation of the complainant’s character and life (he’s just looking after me).

Explaining known counterintuitive behaviours in speeches proved compelling: that AR complainants may lie to family and friends that all is well, not leave an abusive partner, retract complaints, seek to save the relationship due to love, loss of self-confidence or self-respect, believe D will change his cruel behaviour, and – perhaps most personally damaging – evade the realisation that a significant emotional life-affirming investment in D has been turned into a cruel sham by a coercive, controlling, demeaning bully. These features may drive a desire not to support a prosecution and need to be understood by the Crown and jury when untangling such a case.

We suggest that the Judicial College urgently consider developing the equivalent of ‘Rape Myth’ guidance and directions for AR prosecutions in the Crown Court Compendium, explaining the typical dynamics of ARs and warning against drawing incorrect inferences from counterintuitive behaviours.

Proceeding without the complainant

CPS guidance recommends that prosecutors should, from the outset, contemplate proceeding without C’s support, provided C is not placed at increased risk. We suggest that this strategy be undertaken in all AR cases, as C’s reluctance may signal the most serious offending. The investigation should take a ‘target’ approach working from the outer rings inward to C, and considering using hearsay evidence (res gestae, CJA 2003 s 116(2)(e), or s 114(1)(d)).

We propose that YJCEA 1999 s 28 recorded pretrial cross-examination be extended to AR complainants, perhaps even in priority to rape complainants, as the former are more likely to be subjected by the very nature of the offence to self-induced and external pressure to resile from their ABE interview, creating an imperative to capture their full testimony at the earliest opportunity.

Sentencing

Following conviction, the Crown drew upon R v Dalgarno (AG’s Reference) [2020] EWCA 290, with the Court of Appeal’s valuable insights into the dynamics of AR, with a three-month relationship considered an extended period. Dalgarno fortifies the police and CPS in taking a robust approach, using innovative investigation and prosecution techniques. The Overarching Domestic Violence Principles will assist the sentencing judge. The five-year maximum sentence under s 76(1) for what often is many years of abuse needs revision upwards, to reflect the serious damage inflicted.

D was convicted on all counts except wounding (on which C gave contradictory accounts). He was sentenced to 3.5 years’ imprisonment for controlling and coercive behaviour during the six-month relationship and 18 months for the broken jaw, for five years overall.

Obviously, each AR case turns on its own facts. But, as these articles have sought to explain, it requires imagination and lateral thinking to identify and develop those facts into admissible and powerful evidence.

‘Prosecution strategies in AR cases (1)’ appeared in the August 2020 issue of Counsel. Read it here.
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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.