by Nasreen Shah, Legal Advisor at the London Black Women’s Project
Undercharging
It is well reported that the Crown Prosecution Service (‘CPS’) falls short in charging cases involving violence against women. The reasons for undercharging may include budget cuts and systematic failings such as misconduct, but there is also a visible lack of seriousness in tackling domestic violence cases.(1)
“I feel as though the abuse from the system is almost worse than the abuse I suffered at the hand of my husband.”
- Hayley, Survivor
At London Black Women’s Project, a specialist violence against women and girls organisation for minority ethnic women, it has become evident that issues surrounding undercharging and the treatment of victims are prevalent at the CPS. Nonetheless, one must also acknowledge the initial hurdle victims of violence also face; the reporting of the offence.
Before a case is brought to the attention of the CPS, determinations are made by the police. Unfortunately, many victims of abuse, in spite of its wider recognition in the UK, are still treated with contempt. Evidential procedures are not always followed and actual bodily harm (ABH) cases appear to be largely charged as common assault, if at all. Aggravating factors such as years of systematic abuse and red-flag violence such as strangulation, are not given much credence if they were not previously reported and charged. (2).
Even medical reports become redundant if the hospital or GP do not mark the injuries as directly resulting from the abuse suffered. Photographic evidence is not always taken in appropriate conditions, such as a Black woman’s bruises being photographed in a darkened room following an assault.
In conjunction with CPS failings, these obstacles demonstrate that the police can effectively assist in undermining a victim’s case from the start, making it almost impossible to seek justice.
Client X
“Just under two years ago I managed to flee a violent abusive relationship that spanned a period of almost two decades…” (3)
The client’s partner is being investigated on two counts of rape.
“ it has been a very painful process, due to the delays with the police investigation that has been ongoing for the past year and half. Due to these delays, it has had a serious impact in regard to family court proceedings, where I have had to face my perpetrator on several occasions…The impact of the police delays have been so much so that it has affected every part of my life… I have now been diagnosed with a panic disorder, for which I now take medication to help manage this. I am still unclear as to when the investigation will move forward, making the future of both my child and myself very uncertain and continuing to put us at risk.”
Hayley
Hayley’s case (4) is demonstrative of the larger issue at hand. The officer in charge of Hayley’s case lost and failed to procure vital evidence in the first instance, seemingly after meeting the alleged perpetrator. This case makes it difficult not to think about the findings in the Stephen Lawrence Inquiry (5). A petite Black woman tries to seek justice against her abuser, a tall white man.
The case was charged as a common assault, arguably inappropriately so. Hayley has a disability and when the incident took place, she wasn’t clothed, she was pushed, placed in a chokehold, kicked and was made to fall down a flight of stairs.
Now, it is often argued that budget cuts affect many public institutions, including their functionality, and the CPS is no different. It is expected, that the undercharging of ABH cases as common assault reduces the cost of trial and minimises the sentence for the offender, reducing incarceration costs. However, budget cuts affecting CPS should be compared against the soaring cost of domestic abuse cases. (6)
Hayley spent over two years in Court and gave evidence six times. She even had to submit her own evidence on multiple occasions as the police wouldn’t assist. The case was adjourned four times, resulting in different Judges hearing the case and six prosecutors being instructed. The man was convicted and received a community order. He appealed and the conviction ultimately was overturned.
The lack of seriousness attributed to offences perpetrated against women, effectively puts women at greater risk of more violence, including an escalation of violence that can lead to more serious crimes such as murder.
“I find it really painful that the CPS has clear guidelines and none of them were followed in my case. As a witness in my own case, I was given no support from any of the authorities, including the CPS. I have lost all faith in the system and really struggled to have my voice heard. I never thought he would get away with it. If I couldn’t succeed with all the evidence I had, nobody can. There was no remorse from the CPS and police when they realised how wrong this case was going. Going through the court process once is already traumatising enough, but going through it six times, wears you out and makes you feel like the system wants you to fail. I feel as though the abuse from the system is almost worse than the abuse I suffered at the hand of my husband.”
The dichotomy between procedure and human dignity
These cases are only a small reflection of systematic failings but they highlight what is often forgotten - the impact on victims.
Consequently, shortcomings in charging ABH cases and rape cases by the CPS are influenced by internal failings, including the inappropriate treatment of victims or lack of sufficient protection of victims against their perpetrators during and after trial.
According to Barr (2020) (7), the lack of transparency by CPS prosecutors in admitting that hey would voluntarily drop weak cases or make victims uncomfortable, further indicates that the service is in effect contributing to undercharged cases due to misconduct. This type of conduct has been investigated by the End Violence Against Women Coalition, represented by the Centre for Women’s Justice, who have brought a challenge against the Director for Public Prosecutions, examining the CPS rape prosecution policy and practice (8)
The CPS must recognise the limits of their current operational framework. The dichotomy between procedure and human dignity is too great . The CPS must follow its obligation to inform victims of their rights before and after trial, especially by assuring them of their safety before probing for evidence of crimes against them (9) Adherence to such policies will create an overarching positive effect on criminal justice. Besides, while the UK’s effort in tackling violence against women is reliant on and influenced by the CPS, New Zealand's leading efforts include paid leave for abuse victims to encourage the healing process and owning up by victims.(10) An analogous strategy could be adopted in the UK.
Whilst we can still recognise the UK’s leading role within the Commonwealth in its categorisation and education of domestic and sexual abuse, a joint effort to address the systematic undercharging of cases will be necessary, to not only curb the adverse impact on victims but also avoid a society complacent to the effects of violence against women.
Nasreen Shah is a Legal Advisor at the London Black Women’s Project
To find out more about the London Black Women’s Project or to donate please visit http://www.lbwp.online
1 Reed, D., 2020. Medical confidentiality and domestic abuse (Doctoral dissertation, University of Glasgow).
2 https://publications.parliament.uk/pa/cm5801/cmpublic/DomesticAbuse/memo/DAB06.pdf
3 Anonymised, supported by London Black Women’s Project
4 Hayley, supported by London Black Women’s Project
5 The Stephen Lawrence Inquiry, February 1999, at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf
6 Batha, Emma (2019): "Commonwealth urges world to count cost of domestic abuse". Retrieved am 23.08.2020 from https://www.reuters.com/article/us-women-violence-commonwealth/ commonwealth-urges-world-to-count-cost-of-domestic-abuse-idUSKBN1XZ1RZ
7 Barr, Caelainn; Topping, Alexandra (2020): "CPS failed to tell inspectors of internal review revealing rape case failings". The Guardian. Guardian News and Media Retrieved are 23.08.2020 from https://www.theguardian.com/law/2020/mar/15/cps-failed-to-tell-inspectors-of-internal- review-revealing-case-failings
8 https://www.centreforwomensjustice.org.uk/news/2020/7/30/court-of-appeal-grants- permission-for-judicial-review-of-cps-rape-policy-womens-groups-delighted
9 Paradine, K., and Wilkinson, J., 2004. Protection and accountability: The reporting, investigation, and prosecution of domestic violence cases. HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary.
10 Tapley, J., 2020. Politics, Policies, and Professional Cultures: Creating Space for a Victim Perspective in the Crown Prosecution Service. In Victimology (pp. 213-245). Palgrave Macmillan, Cham.