Prosecuting Domestic Abuse in Neoliberal Times

Amplifying the Survivor's Voice

Antonia Porter

• Publisher: Palgrave Macmillan
• Year: 2020
• Print ISBN:
  9783030613686
• eBook ISBN:
  9783030613693
• Topic: Social Sciences
• Subtopic: Civil Rights in Law
• Index: Social Sciences

 

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2020

A. PorterProsecuting Domestic Abuse in Neoliberal TimesPalgrave Socio-Legal Studieshttps://doi.org/10.1007/978-3-030-61369-3_1

Begin Abstract

1. Introduction

Antonia Porter¹

(1)

Kent Law School, University of Kent, Canterbury, Kent, UK

Antonia Porter

Email: [email protected]

Keywords

Crown Prosecution ServiceDomestic abuseGenderNeoliberalismCriminal law

End Abstract

1. Motivations and Objectives

As a practising criminal prosecutor, I find intimate partner abuse cases notably prevalent and the predominance of female victims striking. In fact according to Crown Prosecution Service (CPS) figures, domestic abuse accounts for nearly one in five CPS prosecutions and women are the victim in 83% of such cases.¹ Having previously been a defence advocate, I joined the CPS in 2007 at a time when new domestic violence policy and guidance, paired with mandatory training across the service was being implemented.² It marked the service’s henceforth commitment to dealing with domestic abuse ‘within a gendered framework’ and as a ‘particularly serious’ crime.³ Improving the conviction rate and bringing ‘more perpetrators to justice’⁴ became the organisation’s priority.

This book is inspired by my experience of that policy implementation and the subsequent delivery of the prosecution of intimate partner abuse, particularly at the point a woman withdraws her support for the criminal prosecution. On the one hand, I have observed CPS policy and guidance that ostensibly sets out to serve the state’s self-consciously feminist agendas and, on the other, execution of the policy which bows to neoliberal stratagems and New Public Managerial demands.⁵

In this book, I want to probe and excavate the narratives and discourses that underpin the CPS priority contained in both CPS policy and the daily working practices of prosecutors. Specifically, I consider domestic abuse prosecutions in the context of two key discourses located in the state treatment of violence against women; ‘feminism’ and ‘neoliberalism’. Against the backdrop of their potentially strained union, I set the vocalised concerns and exigencies of women, noting the occasions when contemporary criminal justice responses do not serve women as intended.

2. Prosecuting Domestic Abuse at the CPS

Victims of domestic abuse⁶ are considerably more likely to retract their support for the criminal prosecution, or fail to attend trial to give evidence, as compared to victims of other criminal offences. One in three domestic abuse prosecutions fails in this way, ⁷ accounting for over 7500 cases annually.⁸ This compares to one in ten prosecutions generally.⁹ The reasons that women request the termination of proceedings against their current or former partner are myriad and diverse. They will include both material and relational considerations that do not apply to other general offences.¹⁰ Prosecutors must therefore regularly confront the sensitive question of how to proceed in these circumstances.

Tasked with implementing the prosecutive power of the state, prosecutors act on behalf of the ‘public’ and not individual victims.¹¹ The Code for Prosecutors (The Code) sets out the two-stage test that must be met before prosecutions are pursued; the first is to consider whether there is a ‘realistic prospect of conviction’ on the available evidence—the ‘evidential test ’—the second is to ask whether the public interest will be best served by bringing the prosecution—the ‘public interest test ’.¹² Where a victim of domestic abuse is supportive of criminalisation and, evidentially, there is a realistic prospect of conviction, the prosecutor’s decision to charge or proceed is straightforward; the victim’s wants align with the ‘public interest’ which almost invariably expects domestic abuse to be prosecuted. Indeed, CPS policy confirms that, ‘[i]t will be rare for the public interest not to be met’ in domestic abuse cases.¹³

Where a victim is unsupportive, prosecutors can either accede to her request to discontinue proceedings or decide to pursue the prosecution, absent her support.¹⁴ ‘Victimless’ prosecutions can be achieved where a realistic prospect of conviction exists without requiring the victim to give evidence. This might be feasible if additional corroborative evidence such as police 999 calls, third-party testimony, medical evidence of her injuries or police body-worn video footage is available. It might also be possible, exceptionally, to make a successful hearsay application to have the complainant’s written statement read at trial.¹⁵ However, the opportunity to prosecute intimate partner abuse absent the victim, relying on third-party evidence, is an uphill challenge. So, alternatively, as a ‘last resort’,¹⁶ prosecutors may request the court to issue a summons to secure the victim’s attendance at trial against her stated wishes.¹⁷

It is clear that the CPS is committed to taking domestic abuse ‘seriously’.¹⁸ The current approach to intimate partner abuse was triggered in 2005 by revised policy and guidelines, and mandatory service wide training which was rolled out and completed by 2008 (training which I undertook). My own anecdotal observation in practice was that the commitment to taking the offence seriously was manifesting as a tendency on the part of prosecutors to summons unsupportive victims to trial. My in-depth interviews with prosecutors, conducted in 2017, do not contradict that perception. However, the primary research in Chapter 4 indicates that, following further training which was delivered by the service in 2016–2017, the preference for summons may be beginning to wane in favour of evidence-led (or victimless) prosecutions.¹⁹ Where the victim is no longer supportive, victimless prosecutions are arguably less controversial than summons because the victim is not coerced into physical court attendance but they are not without implications for women’s autonomy. I refer collectively to these two preferred approaches—summons and evidence-led—as the emergence of ‘tenacious prosecutions ’ at the CPS.

‘Tenacious prosecutions’ are traceable to CPS domestic abuse policy and the CPS training emphasis. They are evidenced in my primary research and in CPS performance statistics that have reported year on year increases to the domestic abuse conviction rate between 2010 and 2019.²⁰ If a tenacious prosecutorial approach has emerged, I am concerned in this book to answer the question how it has done so, specifically in the context of the violence against women movement and an era of neoliberalism. I also explore the consequences that arise for women from the state’s commitment to criminalisation and the CPS drive to achieve convictions in matters of intimate partner abuse. In the light of these consequences, the book also contemplates how prosecutors might think about making decisions in domestic abuse cases where the victim is reluctant, in ways that might best support her ‘thrivership ’ (a concept I discuss in Chapter 6).

The remainder of this introductory chapter proceeds by looking at three possible prosecutorial approaches when a woman indicates her preference for case discontinuance and draws out the consequences of each. It then outlines some of the central themes found in the literature pertaining to the state treatment of violence against women and explains why the two theoretical frames—feminism and neoliberalism—have been chosen. I reflect on the advantages and disadvantages of prioritising a criminal justice response to domestic abuse and draw out the paradoxical ‘successes’ of feminism’s cooperation with the neoliberal state. I note, on the one hand, the potential of the law to validate women’s account and the pivotal role law can play in moving women towards living abuse free, yet the union has also been signalled as ‘a betrayal of … emancipatory [feminist] roots’²¹ and as deeply flawed because ‘the law is simply not a one size fits all solution’.²²

3. Prosecutorial Discretion in Domestic Abuse Cases: Three Approaches

The first approach a prosecuting authority might take when discontinuance is requested by a victim of domestic abuse, is to simply accede to the request, or what has been called ‘automatic drop’.²³ This appears to have been the CPS approach prior to 2008 when complainant retraction in the context of prosecuting domestic abuse a...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• 2. Through the Lens of Feminism: State Responses to Domestic Abuse
• 3. Neoliberalism, the CPS and Tenacious Domestic Abuse Prosecutions
• 4. Domestic Abuse, Managerialism and Crown Prosecution Service ‘Working Practice’
• 5. Women Survivors and Legal Consciousness: A Thematic Analysis
• 6. Thrivership: Moving Legal Subjectivity Beyond the Agent/Victim Dichotomy
• 7. Conclusion: Centring Survivors
• Back Matter