Posted on 16th June 2014

Almost by definition, the matters which fall to be dealt with by the Crown Court and the Magistrates’ Court are all serious, but there can be few which are as emotionally as well as legally serious as those which fall under the heading of Domestic Violence. Huge efforts have been made in recent years to address the problems inherent in bringing such matters to court and obtaining convictions, but there is now a real danger that the mechanisms being used to solve the problems are actually making them worse.

Genuine complainants in DV situations need all the help, guidance and support that can be provided; there can be no argument with that. But DV is too important to be left to be determined largely by policy determinants which dictate that any accusation which could amount to DV should be prosecuted come what may. Too often, complainants who have decided to move on with their lives and no longer wish to support a criminal prosecution of their former abuser, are forced to come to court by the draconian means of a witness summons; they attend, give weak evidence – sometimes become hostile witnesses – and then the prosecution case collapses.

Arguably, it would be better to intervene earlier in this process by way of reliance on the new powers of the police to issue what amount to non molestation orders against the perpetrator in situations where the charging standard is met but where the complainant no longer wishes to support the prosecution. Of course, in situations where the complainant is being pressured not to support the Crown in some way, he or she should and must receive all the help possible to overcome that pressure, but the operative presumption should not be that the matter must go to court whether there is a good prospect of conviction or not, simply because it is a DV matter.

The damage done to the complainants in such matters is incalculable; the cynicism this approach breads within the courts is equally notable.

But what of the non criminal disposals of these matters? In principle, the Family Courts can deal with these matters far more effectively through the granting of Non Molestation Orders but judging by the truly vast number being granted, ex parte, with nothing more than an allegation from someone who is often unwilling to provide the police with support to mount a criminal prosecution, serious questions have to be asked of the integrity of that process too. Sadly, in all too many cases, the applications being brought into the FPC and County Court appear to be brought on the basis that an accusation is the same as a fact; that the respondent is guilty until proven innocent and that the aim is to have as many orders made as possible, irrelevant of the quality of the applications.

No doubt there are very many valid cases which are dealt with by the Family Courts just as in the criminal courts, but this is far too serious a matter to allow the blanket granting of orders in the family courts and the overriding policy determinants in the criminal courts to shroud the reality. Resources are scarce in these austere times and we should be focussing instead on the early and accurate identification of cases which need support and assistance. Critical analysis and proper evidential scrutiny need to play as much a part in DV cases as they do in others.

The aim of the courts and the profession should be the facilitation of justice and not simply how many matters we can get into court. Domestic Violence is a serious matter; we shouldn’t be fooling ourselves into thinking we are tackling it just because the Family Court are issuing injunctions by the sack load and the Crown Court are hearing numerous ill feted trials.

The problem is serious; the solution needs to be smarter.

Written by Richard Gibbs, Barrister at No5 Chambers.

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