Is it a Crime? Sade once asked… we aim to answer

This week Manders Law Managing Partner, Mary-Ann Wright speaks to Lucy Winter, specialist criminal law practitioner and founding Director of Winter Allen Solicitors, about what victims and the accused should expect if allegations of domestic violence are made within the context of relationship breakdown. Lucy was described in Legal 500 as, “already a star in her field, whose specialism in sexual offences is growing rapidly”.

If you are currently engaged in a relationship breakdown or divorce proceedings, contemplating proceedings, or advising clients in this area where domestic violence may be a feature, the information and practical guidance below will be of relevance to you.

About the Interviewee

Lucy Winter was called to the Bar in 2010 before deciding to cross qualify to become a solicitor. She advises clients on all aspects of criminal law, with particular expertise in defending clients accused of serious sexual or violent offences. She is also experienced in representing clients facing investigation for complex fraud matters, including boiler room frauds, money laundering and defrauding HMRC. Lucy provides comprehensive pre-charge advice to those facing allegations whilst also protecting her client’s reputation or public image. She has a demonstrable track record of protecting clients from charges ever being brought and works closely with family and reputation & privacy lawyers to ensure the best possible outcome for all aspect of their case.

Lucy Winter

Question

In my experience clients who have been assaulted are often dissatisfied with the police response to their complaints and believe there has been a misapplication of officer discretion in interpreting law and guidance on Domestic Violence leading to poor outcomes- what is best practice by police and what should victims expect and demand?

Whilst I am primarily a defence practitioner I am approached more and more to provide ‘victim support’. Complainants often do not feel like they are supported by the police, which is largely due to significant underfunding rather than a misinterpretation of the law (save for the offence of controlling and coercive behaviour which is sadly still misunderstood by many forces). For so many of the clients that do approach me, they do so because they simply want to know what will and should happen at each stage of the investigation and what they can do to assist. In other cases, the complainant may not appreciate what it is they need to stress to the police. For example, the behaviour that they find most distressing may not amount to a criminal offence and therefore the police do not make an arrest. I often provide assistance in identifying the criminal behaviour that has occurred and then building the complaint around this.

In terms of what should be expected from the police, the College of Policing is clear that officers, “have a duty to take positive action when dealing with domestic abuse incidents”. This usually means that an arrest will be made, especially in domestic violence cases and, if it is not, the officers are obliged to justify why an arrest has not been made. This can be, as I stated above, because the allegations don’t actually amount to a criminal offence. Unfortunately, the complainant cannot demand that an arrest is made.

Even if the police do not make an arrest, they must consider the risk to the complainant and any children in the home. If there is a risk to their safety then other positive steps such as organising refuge, fitting a panic alarm, or removal of the accused in order to prevent a breach of the peace, should be considered. In some circumstances, a Domestic Violence Protection Notice could be made to protect the complainant for a short period in order to give them the time to make their own decision about how to proceed, in the absence of the accused.

In all circumstances, the police should take a statement from the complainant and when there is an identified risk to safety a follow up visit should be performed later that evening or the next morning. Sadly, given the additional pressures occasioned by the COVID-19 pandemic I am aware that this is not always happening as it should.

Question

From day to day practice we are aware that clients are often compelled to spend considerable sums on obtaining Non Molestation Orders (NMOs) in the family courts only to find that the police fail to arrest when a breach of the Order occurs. Why does this happen?

Unfortunately, this is causing grave problems in domestic abuse cases for both sides.

NMOs work so well because they act as protection for the victim of domestic abuse without police involvement, unless there is further molesting behaviour. These orders also clearly set out what behaviour the person obtaining the order considers to be molesting in order that there can be no confusion. Many complainants do not want to go as far as reporting their former partner to the police, especially when they have children together, but do want to ensure that there is no further inappropriate contact. In some cases, where victims lack funds to obtain appropriate court orders or because such orders are not properly enforced, the police are contacted and allegations made, simply because the complainant knows it is a way to have the accused removed from the FMH. When this happens the case immediately becomes more serious and acrimonious.

I always recommend that if there are breaches of an NMO the person who has obtained the order reports each and every breach to the non-emergency police number 101 or logs it on their website, even if it is minor, so that it is recorded on the police system. They should keep their own log as well and remind the police of previous infractions each time. Even if the police are failing to arrest for the breach they will be in a position to make a separate allegation of harassment once there is more than one occasion of contact that causes the complainant to feel alarmed or distressed. However, if a person believes that they are in immediate danger, or the person subject to the NMO is physically near them, they should always call 999 immediately.

Question

Dispelling myths – we frequently hear clients say, “I am going to press charges” – for the benefit of our readers can you explain why this is not their role?

This is of course a myth – no one can compel the police to charge anyone, just as they cannot demand that the police arrest someone. What they can do is make a complaint to the police alleging that an offence has been committed against them. The police will then take over this complaint and investigate. It is not up to the complainant, whether the person they are complaining about is charged or not, but they will usually be contacted and informed of the decision making. The Crown Prosecution Service will consider whether there is enough evidence to proceed to trial and will consider whether there is a realistic prospect of conviction when making this decision. So, if it is one person’s word against the others, they will usually be looking for more supporting evidence if possible.

It is the Crown (CPS) and the Crown alone that will charge the accused person and not the individual complainant. The complainant becomes a witness for the Crown. Equally, if the complainant decides not to proceed as a witness and withdraws their statement, or fails to turn up to court, the CPS can still continue with the trial without them, as it is the Crown’s prosecution not that of the initial complainant. Although the CPS do not regularly proceed to trial without the complainant on board, it is quite common for them to proceed this way in domestic violence cases due to increased awareness around the effect of manipulation by the accused on complainants or the claimant’s fear of the ramifications of giving evidence. The CPS consider that there is a great public interest in proceeding with trials against those accused of domestic violence, so will do so if possible.

Question

Another common problem we encounter as family lawyers assisting clients in these cases is an apparent lack of police resource leading to problems with returning to the family home to collect belongings with officers present, to protect the client or indeed to ensure vexatious allegations are not made against our clients. What is your experience?

In non COVID -19 times the police are usually pretty good at providing a presence for the accused to return to the family home to collect their belongings in the first instance, but any further visits are incredibly difficult to arrange because they simply do not have the resources. Many clients I represent become extremely frustrated with this as they have no idea what the party who has remained in the home will do to their belongings. I would recommend that any person who needs to return to collect their belongings does not do so immediately, not least because they will always forget to collect a lot of things in their distressed state.

I advise my clients to allow me to set up a specific time to return to the home, the day after they have attended the police station (if possible!). In that time, they should sit down and carefully consider what items they need when they do return. If there are a lot of things to collect they should speak to a family member or friend and ask them to come with them and the officers in order to assist. They should try to collect as many things as possible on this first visit. I have found that writing the list will also help in the family proceedings if anything has been removed by the other party. It may also be the basis of a counter allegation of criminal damage or theft.

If my client is subject to an NMO, I will usually make representations to the police that bail conditions are unnecessary in the circumstances. When successful, this can be very useful as it can then be agreed between the parties via their family lawyers, and approved by the family court, for a time that the removed person can return to collect further belongings. The returning party should always be accompanied by someone and the person who has remained in residence should agree to either leave the home or keep away from certain rooms. If the police are not able to attend, I would recommend a solicitor is the accompanying person if it is considered likely that vexatious allegations could be made. This is only possible if there are no bail conditions preventing them from returning and of course the client can afford this level of support, which is of course not ideal.

Question

We often act for complainants and indeed for clients who are on the receiving end of false or vexatious allegations of domestic violence. Can you give us your top tips on how to cope and what to do if you are falsely accused and asked to leave family home and/or arrested?

First and foremost, my strong advice to any person accused of any crime whatsoever, is that they have legal representation. It is a complete myth that, “if you haven’t done anything wrong you don’t need a lawyer”. In fact, if you have been falsely accused you need legal representation even more. If you do not know any criminal lawyers, ask to call your family lawyer who will be able to recommend someone. If you can’t do either, use the duty solicitor at the police station who will represent you for free.

The police may well encourage you to use the duty solicitor in order to have your interview dealt with swiftly. Many clients report they were told it would be the quickest way to get out of the police station. Whilst you may wish to leave the police station as soon as possible you should be aware that this is unlikely to be the end of the case. The police may conduct further investigations while you remain in their custody and of course they are permitted to hold you for 24 hours before having to make applications to extend. It is far better to wait for as long as it takes (usually only an extra hour) for a solicitor to arrive so that you have been advised in full before going into your interview. Your interests are then protected while you are at the police station.

In addition, it helps with the defence of your case going forward if you have legal representation from the beginning. When instructed at the police station stage there are many actions criminal defence solicitors can take legally, or representations that we can make to the police, to greatly improve your chances of not being charged. If we are instructed after the interview, it is often far more difficult to do this.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.