Prosecuting "domestic" assault

Criminal Law Review

Volumn 1996, Issue 3, 1996, Pages 162-173

  Cretney, Antonia ^a   Davis, Gwynn ^a  

^a UNIVERSITY OF BRISTOL   (United Kingdom)

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EID: 3042958671     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (42)

1. Respectively Research Fellow and Professor of Socio-Legal Studies, Department of Law, University of Bristol. The research underpinning this article was funded by The Nuffield Foundation. The authors are grateful to the Avon and Somerset police service and to the Crown Prosecution Service who each provided exemplary co-operation at every stage of their research. They would also like to thank Pat Hammond who typed the various versions of their research findings, including several drafts of this article, and Jo Towns who helped in extracting data from police files and subsequent computing operations. Finally, they are grateful to Jackie Barron, Gill Hague, Ellen Malos, Sharon Grace and Carol Hedderman for their constructive comments on earlier drafts.
2. For a discussion of the history see Lorna Smith, Domestic Violence: An Overview of the Literature, Home Office Research and Planning Unit Report, HORS 107 (H.M.S.O.).
3. In 38 per cent of homicides involving female victims in 1992 the victim was the "spouse, cohabitant or former spouse or cohabitant": Criminal Statistics of England and Wales 1992, Cm. 2410 (1992) (H.M.S.O.), Table 4.4, p.79.
4. The Metropolitan Police receives an estimated 60,000 reports of domestic violence annually, of which 7,000 are recorded as assaults (Home Affairs Select Committee of the House Of Commons, Report on Domestic Violence, Volumes I and II, 1993).
5. This has recently been the subject of a Home Office investigation, reported in S. Grace, Policing Domestic Violence in the 1990s, Home Office Research Study 139 (1995, H.M.S.O.).
6. S. Schechter, Women and Male Violence (1982, Pluto Press), p.166.
7. P. Faragher, "The Police Response to Violence against Women in the Home" Private Violence and Public Policy (J. Pahl ed.) (Routledge).
8. A. Sanders, "Personal Violence and Public Order: The Prosecution of 'Domestic' Violence in England and Wales" (1988) 16 International Journal of the Sociology of Law 359.
9. R. Morley and A. Mullender, "Hype or Hope? The Importation of Pro-arrest Policies and Batterers' Programmes from North America to Britain as Key Measures for Preventing Violence against Women in the Home" International Journal of Law and the Family (1992) 6.
10. Initiatives of particular note have been the Domestic Abuse Intervention Project in Duluth, Minnesota (E. Pence and M. Shepard, "Integrating Feminist Theory and Practice: The Challenge of the Battered Women's Movement" in K. Yllo and M. Bograd (eds., 1988), Feminist Perspectives on Wife Abuse (Sage, Newbury Park, California)) and the Domestic Abuse Project in Minneapolis (D. J. Gamache, J. L. Edleson and M. D. Schock, "Co-ordinated Police, Judicial and Social Service Response to Woman Battering: A Multiple-baseline Evaluation Across Three Communities", in Coping with Family Violence: Research and Policy Perspectives (G. T. Hotaling, D. Finkelhor, J. K. Kirkpatrick and M. A. Strauss eds. 1988) (Sage, Newbury Park, California)), under which criminal prosecution is linked to counselling for offenders and the provision of welfare services and advocacy programmes.
11. Initiatives of particular note have been the Domestic Abuse Intervention Project in Duluth, Minnesota (E. Pence and M. Shepard, "Integrating Feminist Theory and Practice: The Challenge of the Battered Women's Movement" in K. Yllo and M. Bograd (eds., 1988), Feminist Perspectives on Wife Abuse (Sage, Newbury Park, California)) and the Domestic Abuse Project in Minneapolis (D. J. Gamache, J. L. Edleson and M. D. Schock, "Co-ordinated Police, Judicial and Social Service Response to Woman Battering: A Multiple-baseline Evaluation Across Three Communities", in Coping with Family Violence: Research and Policy Perspectives (G. T. Hotaling, D. Finkelhor, J. K. Kirkpatrick and M. A. Strauss eds. 1988) (Sage, Newbury Park, California)), under which criminal prosecution is linked to counselling for offenders and the provision of welfare services and advocacy programmes.
12. The Metropolitan Police has created 62 such units (S. S. M. Edwards and A. Halpern, "The Progress Towards Protection" [1992] New L.J. 798); some rural forces, on the other hand, do not yet have any. Grace (ibid.) found that just over 50 per cent of forces had a special unit with some responsibility for domestic violence, but only five forces had dedicated domestic violence units. In Avon and Somerset these units are styled Family and Child Protection Units and their responsibilities lie principally in the area of child abuse, not partner assault.
13. The Metropolitan Police has created 62 such units (S. S. M. Edwards and A. Halpern, "The Progress Towards Protection" [1992] New L.J. 798); some rural forces, on the other hand, do not yet have any. Grace (ibid.) found that just over 50 per cent of forces had a special unit with some responsibility for domestic violence, but only five forces had dedicated domestic violence units. In Avon and Somerset these units are styled Family and Child Protection Units and their responsibilities lie principally in the area of child abuse, not partner assault.
14. J. W. E. Sheptycki, Innovations in Policing Domestic Violence (1993, Avebury, Aldershot).
15. Grace (ibid.) found that victims' experience of uniformed police remained mixed, with there still being plenty of room for improvement. The decision whether or not to arrest was heavily influenced by whether the complainant would support subsequent police action.
16. National Inter-Agency Working Party, "Report on Domestic Violence" (1992, Victim Support, London).
17. A. Cretney, G. Davis, C. Clarkson and J. Shepherd, "Criminalizing Assault: The Failure of the 'Offence Against Society' Model" (1994) 34 British Journal of Criminology 1.
18. Birmingham, South Wales, and two metropolitan districts.
19. Our sample was taken from the "Persons Recorded Book" kept by the Avon & Somerset Administrative Support Unit (Crime) in Bristol. Using this book we identified 684 prosecuted assaults from the period January-October 1993; of these we were able to trace 568 files. Inspection of the files prompted us to exclude 120 cases from our sample: 35 because the defendants were juveniles; 48 because the offence was an assault on a police or prison officer; two because the defendant was female; three because the case was as yet uncompleted at Crown Court; and the remaining 32 were excluded because they did not after all involve an assault charge.
20. Grace (ibid.) found that there was little systematic recording of domestic violence incidents, one consequence of this being that the police could not check whether there was a history of violence when responding to a "domestic" call. In the Birmingham area we were told of a 30 per cent increase in reported cases of domestic violence, with a corresponding increase in the number of cases coming to court.
21. Mayhew et al., The 1992 British Crime Survey, Home Office Research Study 132 (1993, H.M.S.O.), p.82.
22. ibid., fig. A6.1. The authors observe that this figure should be regarded as a minimum, given the problem of under-reporting. The survey also revealed that 50 per cent of those women who admitted to having been attacked in 1991 claimed to have been assaulted more than once.
23. L. Davidoff and L. Dowds, "Recent trends in crimes of violence against the person in England and Wales" Research Bulletin No.27, Home Office Research and Planning Unit (1989); S. S. M. Edwards and A. Halpern (1992), above.
24. It should be noted, however, that we had excluded from our sample all those cases involving an assault on a police or prison officer (n=48). If this number had been included, and added to the non-domestic total, it would produce the proportion: 41 per cent domestic assaults, 59 per cent non-domestic assaults. This is still well beyond what one might expect in the light of British crime survey data. Our classification of domestic violence cases included intra-family assaults, i.e. those where victim and assailant were related but where there was no sexual relationship. If we also transfer this group to the "non-domestic" category, the number of domestic assaults becomes 178, and the proportion of domestic to non-domestic assaults becomes 36 per cent to 64 per cent.
25. S. S. M. Edwards, Policing "Domestic" Violence: Women, the Law and the State (1989, Sage, London), p.22.
26. S. S. M. Edwards, S. and A. Halpern, "Protection for the Victim of Domestic Violence: Time for Radical Revision?" (1991) 2 Journal of Social Welfare and Family Law; National Inter-Agency Report (ibid.); HACDV (ibid.); The Times, December 2, 1993; CPS 1994, p.5 (ibid.).
27. S. S. M. Edwards, S. and A. Halpern, "Protection for the Victim of Domestic Violence: Time for Radical Revision?" (1991) 2 Journal of Social Welfare and Family Law; National Inter-Agency Report (ibid.); HACDV (ibid.); The Times, December 2, 1993; CPS 1994, p.5 (ibid.).
28. S. S. M. Edwards, S. and A. Halpern, "Protection for the Victim of Domestic Violence: Time for Radical Revision?" (1991) 2 Journal of Social Welfare and Family Law; National Inter-Agency Report (ibid.); HACDV (ibid.); The Times, December 2, 1993; CPS 1994, p.5 (ibid.).
29. S. S. M. Edwards, S. and A. Halpern, "Protection for the Victim of Domestic Violence: Time for Radical Revision?" (1991) 2 Journal of Social Welfare and Family Law; National Inter-Agency Report (ibid.); HACDV (ibid.); The Times, December 2, 1993; CPS 1994, p.5 (ibid.).
30. S. S. M. Edwards, S. and A. Halpern, "Protection for the Victim of Domestic Violence: Time for Radical Revision?" (1991) 2 Journal of Social Welfare and Family Law; National Inter-Agency Report (ibid.); HACDV (ibid.); The Times, December 2, 1993; CPS 1994, p.5 (ibid.).
31. In a survey of all cases discontinued during November 1993 the CPS found that 17 per cent of discontinuances occurred because the prosecutor was "unable to proceed". This included 13 per cent of cases where "an essential witness was missing or refused to give evidence and we had no option but to discontinue". 31 per cent of cases were discontinued on public interest grounds (CPS 1994, p.15, Annual Report, April 1993-March 1994, (H.M.S.O.)).
32. CPS 1993 (ibid.), 3.3.
33. Para. 25.
34. The bindover may be imposed without a conviction - that is to say the defendant may agree to accept a bindover when the charge against him is withdrawn; or it may be imposed as part of a sentence upon conviction (Law Com. (1993), ibid., para. 2.10). The agreement of the complainant may be sought, but the prosecution is under no obligation to do this. Bindovers in domestic violence cases generally follow the withdrawal of the charge.
35. "A mere bindover order is an inadequate and trivialising response to violent conduct", (1993) (ibid.), paras. 6.11-13.
36. HACDV (ibid.), Vol. I, p.xxv, para. 71.
37. CPS 1993 (ibid.), para. 9.1.
38. Para. 9.2.
39. Grace (ibid., p.47) reports that most of the prosecutors whom she interviewed admitted that a bindover offered little protection to the victim and would not deter persistent abusers.
40. "Our policy position is that these cases will usually require prosecution if the evidence is there", HACDV (ibid.), Vol. II, p. 141, para. 80.
41. Pseudonym.
42. Nicola Harwin, National Co-ordinator of Women's Aid, when giving evidence to the Home Affairs Select Committee, observed that "few women who come to refuges go through the prosecution process".