Consultation on the Domestic Abuse legal guidance

Outcomes

Consultation on Domestic Abuse Legal Guidance - Summary of Responses

Introduction

This is a summary of responses to the public consultation on the Domestic Abuse Legal Guidance undertaken by the Crown Prosecution Service (CPS). Draft legal guidance was published on 4 April 2022 and consulted on for a period of 12 weeks, ending 26 June 2022.

The primary audience for the guidance is our prosecutors; but we recognise it contains helpful information for the police, support services, and members of the public. The purpose of the consultation was to provide interested persons with an opportunity to provide comments and to ensure the final version of the legal guidance was informed by as wide a range of views as possible.

This summary provides:

1. An overview of the consultation
2. Consideration of the consultation responses and
3. Comments received which were out of scope.

We would like to thank everyone who took the time to consider the draft legal guidance and send in their views which have been used to enhance the final version.

1. Overview of the consultation

The consultation was published on the external CPS website and widely publicised through:

• a press release
• CPS stakeholder group workshops with our Violence Against Women and Girls (VAWG) External Consultation Group¹
• circulating the statement to other Government departments
• circulating the statement to police forces
• circulating the statement to the offices for Police and Crime Commissioners
• circulating the statement at a local level through CPS Domestic Abuse Leads and Inclusion and Community Engagement Managers
• the CPS’ social media channels and
• publication of the consultation internally on the CPS intranet.

We received responses from 42 respondents in total. The responses to each question were analysed separately and the main points were identified and carefully considered. Not every respondent gave specific answers to each individual question, but their views were still considered. This summary does not address every point made by respondents, but the themes of responses received.

Responses were received from a variety of people, including the Domestic Abuse Commissioner, Police officers, Domestic Abuse charities and support services, local authorities, Police and Crime Commissioners, the Home Office, and members of the public, as well as anonymous submissions.

2. Consideration of the consultation responses

This section provides a summary of the themes and issues raised in response to the consultation questions. We provide information on the changes we have made in the finalised legal guidance and those which were considered but which did not result in a change.

The consultation posed eight questions in relation to the draft legal guidance, with a further question asking for any additional comments.

Question 1: Do you think the terminology used is appropriate and sensitive to the issues addressed? If not, please identify concerns and share how it can be improved.

The majority of respondents provided a positive response to this question, welcoming the clear, sensitive, and inclusive language.

We have made the following changes to the legal guidance as a result of comments received:

• The CPS has agreed that the term ‘victim’ will be used as standard terminology for all legal guidance being produced going forward. The term ‘victim’ encompasses other terms such as ‘complainant(s)’ and ‘survivor(s)’.
• The CPS has agreed that the term ‘perpetrator’ will no longer be used in legal guidance being produced going forward. The terms ‘suspect’, ‘defendant’ or ‘offender’ will be used as standard terminology, depending on the stage of proceedings being described.
• We have further clarified that while we use the term ‘violence against women and girls’ in the legal guidance, we apply the guidance to all victims of domestic abuse equally. We have further clarified that some suspects will be women, some victims will be men and some victims and suspects will be non-binary or identify in a different way.
• In line with feedback received and the Domestic Abuse Act 2021, the term ‘financial abuse’ has been updated to ‘economic abuse’.
• We have amended the term ‘abusive household’ to ‘living with a suspect of abuse’.
• We have amended the term ‘suffer domestic abuse’ to ‘experience domestic abuse’.
• We have amended the language used to describe children to ensure that it is clear that they are classed as victims of domestic abuse.
• We have amended the term ‘serious, sensitive or complex domestic abuse cases’ to ‘sensitive and complex’ as all cases of domestic abuse are serious. Police and lawyers need to know that they are advised to seek early advice from the CPS where cases are particularly sensitive or complex.

We carefully considered the following points which did not result in a change to our legal guidance:

• Some responses suggested that the gendered nature of domestic abuse was lost due to the gender-neutral language used in the statement. We recognise that women and girls are disproportionately impacted by domestic abuse², however, we do also see cases where trans or non-binary individuals and men are victims. We believe that in the interests of being inclusive of all victims, gender neutral language is appropriate.
• We have not amended the term ‘hostile’ or ‘reluctant’ witness as this is the term used in the law.
• We have not amended the term ‘allegation’ as this is the legal term used by all criminal justice agencies for when an offence is reported to the police before any findings and is used for all offences.
• We have not amended the term ‘domestic violence flag’ as this is the flag used on the CPS’ internal systems and cannot be changed at this stage.
• We have not amended the term ‘hearsay’ as this is legal terminology.

Question 2: Do you think that the guidance in the section titled: ‘Applying the Code’ in relation to the principles to consider when applying the evidential test will assist prosecutors in arriving at Code compliant charging decisions in DA cases?

The majority of respondents provided positive feedback to this question.

We have made the following changes to the legal guidance as a result of comments received:

• We have further clarified that the legal guidance is applied equally to all victims and suspects of domestic abuse, irrespective of gender or sexuality.
• We have added the following clarification about the evidential stage of the Code test, taken from the Code for Crown Prosecutors: ‘this is a different test from the one that the criminal courts themselves apply. A court may only convict if it is sure that the defendant is guilty’.
• We have clarified that police cannot charge any domestic abuse offence without referral and a threshold or full code test advice from the CPS.
• We have further clarified that prosecutors must not allow myths and/or stereotypes, or assumptions to influence their evaluation of the evidence, nor must they apply a ‘bookmaker’s test’ where an attempt is made to second guess potential jury prejudice. This is in line with our Rape and Serious Sexual Offences (RASSO) legal guidance.
• We have further expanded the section on considering whether it is in the public interest to prosecute to highlight that prosecutors should be aware of any children living with or frequently visiting the address of a suspect of abuse.
• We have added the section from the previous version of the legal guidance which covers myths and stereotypes around a victim’s credibility.
• We have removed from the Public Interest section ‘and the victim is willing to give evidence’ as prosecutors should seek to build cases which are not dependent on victim evidence (evidence-led prosecutions).

We carefully considered the following points which did not result in a change to our legal guidance:

• We have not made any further amendments to the section on cautions or restorative justice at this stage, as it will be updated when out of court disposals change in line with the Police, Crime, Sentencing and Courts Act 2022.
• One respondent was concerned about the disclosure of evidence. This is dealt with separately within the CPS disclosure manual and other disclosure guidance.
• We received comments that the ‘evidential stage’ section should acknowledge the difficulties of evidencing domestic abuse. We have not made any amendments to this effect as the legal guidance is designed to help prosecutors overcome these difficulties.

Question 3: Is the new content in the section titled ‘Offences available to prosecutors’ accurate and comprehensive and do you think it will assist prosecutors in making decisions reflecting all the potential background in DA cases?

We have made the following changes to the legal guidance as a result of comments received:

• We have added the new offences of Non-Fatal Strangulation and Non-Fatal Suffocation to the list of offences available to prosecutors and linked to the relevant legal guidance.
• We have added links to legal guidance on Modern Slavery, Human Trafficking and Smuggling, female genital mutilation, and restraining orders.
• We have added a new section on statutory time limits for offences of common assault or battery which amount to domestic abuse to explain that these limits have been extended in line with section 39A Criminal Justice Act 1988 as inserted by section 49 of the Police, Crime Sentencing and Courts Act 2022.
• We have added a section on breach of restraining orders, non-molestation orders, and stalking protection orders. Breaches are also covered separately later in the guidance;
• We have made corrections throughout the guidance to refer to stalking or harassment, not stalking and harassment.
• We have reminded prosecutors to consider the wider context of any incidents reported by victims and ensure that any other relevant potential charge(s) or ongoing investigations are considered.
• We have reminded prosecutors to consider if a pattern of behaviour amounts to controlling or coercive behaviour.

We carefully considered the following points which did not result in a change to our legal guidance:

• We received comments that stalking needs to be featured more heaving in the legal guidance. Separate stalking guidance is being updated and we have provided links to this.
• We have not provided further explanation of Offences Against the Person or Non-Fatal Strangulation and Non-Fatal Suffocation, as we have provided links to the relevant legal guidance for these offences. The ‘offences available to prosecutors’ section reminds prosecutors that the domestic abuse legal guidance is overarching guidance and they should also refer to other relevant legal guidance for the offences they are considering charging. 

Question 4 - Will the new content in the section titled ‘Case building and approach to prosecuting DA cases’ regarding factors to consider when making charging decisions assist prosecutors with identifying actions and building cases for charge?

Overall, we received positive feedback to this question, particularly with regards to the sections on the offender-centric approach and evidence-led prosecutions which were welcomed.

We have made the following changes to the legal guidance as a result of comments received:

• We have clarified that victims’ views should be obtained when considering making a charging decision, that victims must be kept informed of progress of the case and when a charging decision is made.
• We have added ‘victim’s safety and welfare needs’ to factors to consider when making a charging decision.
• In the offender-centric approach section, we have added the need to look at wider patterns of behaviour.
• We have clarified when the Police can make a No Further Action decision in a domestic abuse case.
• We have updated the link to the newly updated Attorney General’s Guidelines on Disclosure.

We carefully considered the following points which did not result in a change to our legal guidance:

• We have not expanded the section on bail as the guidance already sets out considerations for prosecutors when deciding to make a bail application. 
• We received comments about prosecutions against people who have killed an abusive partner. We will incorporate this into the review of the homicide legal guidance.

Question 5 - Will the new content in the section titled ‘Case building and approach to prosecuting DA cases’ regarding evidence led prosecutions assist prosecutors when making charging decisions and building cases for charge?

We received positive feedback to this question. The section on evidence led prosecutions was described as ‘extensive and detailed’ and respondents welcomed the section on counter allegations.

We have made the following changes to the legal guidance as a result of comments received:

• We have added a point under the section on counter allegations and self-defence to remind prosecutors to consider if there is any information available regarding controlling or coercive behaviour.
• Under the list of factors to consider for bail applications, we have added that the prosecutor should consider whether the defendant is a carer for the victim.
• We have added that prosecutors should consider victim distress when considering witness summons.
• We have changed the wording around Independent Domestic Violence Advisers (IDVAs) to ‘IDVAs and other support services’ to recognise that not all support services are IDVAs.

We carefully considered the following points which did not result in a change to our legal guidance:

• We have not added to the section on witness warrants as these should be considered on a case by cases basis.
• The right to bail is covered in the bail legal guidance, which we have linked to within this domestic abuse legal guidance.

Question 6 – Is the content in the section titled ‘Sentencing & Ancillary Orders’ accurate and comprehensive? Will it assist prosecutors with better awareness of orders to be considered in DA cases?

The majority of respondents felt that this section was comprehensive and accurate.

We have made the following changes to the legal guidance as a result of comments received:

• We have added information about new Domestic Abuse Protection Orders and Notices introduced by the Domestic Abuse Act 2021, which will come into force in 2023. More detail will be added when the relevant legislation has been commenced.
• We have added a section on occupation orders.
• We have added to the section on restraining orders that these should be considered in every domestic abuse case.

We carefully considered the following points which did not result in a change to our legal guidance:

• We have not included information on pilots in the national legal guidance, as these are only applicable to certain Areas. Relevant Areas have the necessary information and if implemented nationally, the legal guidance will be updated to reflect this.
• We have not added a summary of the restraining order legal guidance. The restraining order legal guidance has been updated separately to the domestic abuse legal guidance and we have provided a link to this.
• We have not included information on Sexual Harm Prevention Orders (SHPOs) as this is covered in the RASSO legal guidance and will be relevant to sexual offending. We have provided a link to this guidance.
• We have not updated the section on compensation as this section already reflects the need to consider the individual circumstances of the case and apply for compensation where appropriate.

Question 7 – Do you think the new content on DA myths and stereotypes at Annex C is accurate and comprehensive and do you think it will assist prosecutors in making decisions which are not clouded by myths and stereotypes?

The content on myths and stereotypes was greatly welcomed by respondents. We received many comments with potential changes and additions to this section, based on the expertise of our stakeholders.

The biggest change we have made to this section is that we have reframed the myths and stereotypes into positive statements. The decision to make this change was based on some of the comments we received, and work that the Home Office has recently done on effective ways to challenge commonly held views that are based on myths and stereotypes.

We have also made the following changes to the legal guidance as a result of comments received:

• We have added the statement ‘victims may not report domestic abuse immediately after an incident occurs. This does not mean that they lack credibility as a witness’ and provided detail to explain why a victim may not report or may delay reporting an incident.
• We have added the statement ‘the most dangerous time for a victim is often when they leave a relationship with a suspect of abuse’ to reflect comments received and our own understanding of the risks involved to victims. 
• We received comments that this section should include case studies. We have included some specific examples in Annex C: Important points to remember in cases of domestic abuse to illustrate how the police and prosecutors can develop robust case strategies. Additionally, as part of the CPS Domestic Abuse Programme, we have developed training which supports the domestic abuse legal guidance for all prosecutors. As part of this training assumptions about domestic abuse will be challenged and there will be a case study for prosecutors to work through. We also regularly examine case studies as part of our Local Scrutiny and Involvement Panels. LSIPs are run by each CPS Area and provide an opportunity for us to come together with local community members and partner agencies to discuss local issues and identify ways we can improve.  

Question 8 – Do you think Annex E has all the correct details for the relevant national support organisations? If not, please identify concerns and share the correct details.

We have added the following organisations:

• The Government’s Forced Marriage Unit
• Karma Nirvana
• National Stalking Helpline
• Paladin
• Restored
• Sikh Women’s Aid
• Sistah Space
• Surviving Economic Abuse
• SurvivorsUK
• White Ribbon UK

3. Comments received which were out of scope

We received a number of points which related to issues outside the scope of the consultation. In summary:

• We received comments about Interim Charging Protocols. We have not included this as there is separate guidance for prosecutors in relation to this.
• We received comments about the guidance and training provided for Police officers and investigators. This is not with the remit of CPS legal guidance and is a matter for the Police.
• We received comments about challenging myths and stereotypes in courts and among juries. This is not within the remit of this legal guidance which focuses on challenging myths and stereotypes relevant to prosecutors, though we recognise that the information in this section may also be helpful to police, advocates, and those working in courts.
• We received comments regarding the legal guidance on Non-Fatal Strangulation and Non-Fatal Suffocation. These will be considered separately for review of that piece of guidance.