The Victimless Prosecution

Friday, February 21st, 2020

Following the very tragic passing of celebrity personality, Caroline Flack, there has been much discussion surrounding whether the Crown Prosecution Service (CPS) were right to pursue a victimless prosecution against Ms Flack, when her partner made it very clear from the outset that he did not wish to see her prosecuted.  It was reported that Ms Flack’s partner, Lewis Burton, did not support nor did he request the imposition of bail conditions preventing contact between the couple, which were still imposed at the time of her death, also.

It would appear that the general public were astonished to know that the CPS would proceed in this way, in any case, where the alleged victim did not wish to see their loved one prosecuted.  This is however now quite a common course of action and stance taken by the CPS and the number of such prosecutions begins to rise daily.  However, does this mean a victimless prosecution is the right course of action?

In previous years, there was a reluctance for authorities to intervene in matters of the matrimonial home.  This did not just extend to domestic violence between partners, but to disciplining of children and even a view of how intruders into the home should be dealt with.

There is now however, quite rightly, great protection for victims of domestic violence.  This includes safeguarding measures by the Police where domestic violence protection orders can be sought before any criminal proceedings have even commenced, and special measures within criminal proceedings to ensure that victims do not have to face their abuser when giving evidence, just to name a few.

More recently the law has extended further to aid sufferers of domestic abuse, and now recognises mental abuse as a form of domestic violence, with the legislation criminalising coercive and controlling behaviour.

All of the above are extremely positive steps which have been taken to protect the vulnerable within society.  But does the victimless prosecution take things too far and infringe upon the right to private and family life?

In many cases, it most certainly could be argued that it does and the recent death of Ms Flack has highlighted this.

In this case, it was reported that Mr Burton never supported a prosecution, however he did make the initial call to the Police, whereby he stated that Ms Flack was trying to kill him.  However, it was reported that Mr Burton never made a formal statement against Ms Flack, nor did he substantiate any allegation when the Police arrived.  The Crown relied upon the body worn footage of the officers, which captured the presence of large amounts of blood within the property and Ms Flack making an admission to the Police who arrived on the scene that she “had done it”, as well as the 999 call from Mr Burton.  This is the information that has been reported to date.

The imposition of body-worn footage for Police Officers is a relatively new development. However prosecutors rely on a very old doctrine called Res Gestae to adduce the footage that it captures into evidence, when the support of the accuser is no longer or has never been available to the Crown. This is an exception to the rule of hearsay and is a very complicated and archaic piece of legislation that is now used routinely to bring a victimless prosecution .  The application can be made at any time within proceedings, even on the day of trial, where the Crown has been informed from the outset that the alleged victim does not support the prosecution.  It should only be allowed in the most startling of cases where a statement made by an alleged victim is made by a person who is so emotionally overpowered by an event, that the possibility of concoction or distortion can be disregarded

The Crown routinely takes this even further, when suspects are acquitted of all charges and the prosecution still apply for post acquittal restraining orders. This is most dangerous when acquittals arise from inconsistent evidence, as it exposes the acquitted to the possibility of further malicious allegations of breaching such order, which is an extremely serious offence.

There are of course circumstances, where the Police/Crown are assisting the extremely vulnerable within society, where the decision to withdraw support of a prosecution is through fear and more controlling behaviour by the accused. It is understandable within such circumstances that authorities are simply protecting such victims when they cannot protect themselves. However there no longer seems to be a distinction between these cases and instances where fully capable adults make informed decisions that they don’t wish for this intervention by Police and the Crown. For example in cases where the call to Police has not even been received from the alleged victim at all and may have been from a member of the public, who often mis-interpret the incident that they witness or catch the tail end of.

At Hanne and Co, we robustly defend those faced with a victimless prosecution. We ensure that written representations are made to the Crown from the very outset of an investigation/proceedings.  We have successfully ensured that a number of victimless prosecutions never proceed to trial, that bail conditions which contravene the right to private and family life are never imposed and have resisted res gestae applications resulting in the Crown offering no evidence. We have also successfully opposed and appealed the imposition of post-acquittal restraining orders, and continue to exhaust every avenue for our clients, whilst this blanket approach towards victimless prosecutions continues.

There is no doubt that there will now be a greater light cast on the decision-making to proceed with a victimeless prosecution, following the very sad passing of Ms Flack.  Now that all officers are wearing body-worn cameras footage there could also be a review as to how footage from such cameras is dealt with, when Police Officers attend any scene.  Those arrested are cautioned that anything they say may be given in evidence, so why is the same precaution not read to those who are captured on the footage?  Especially when it can be the only piece of evidence used to convict their loved one, many months later.

Please do not hesitate to contact our Criminal Department on 020 7228 0017 for advice in respect of a victimless prosecution or to understand your rights when dealing with the Police.

Victimless Prosecution: Charlotte Rowden of Hanne & Co's London Office examines victimless prosecution

Charlotte Rowden is a solicitor in Hanne & Co’s Criminal Department.

 

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