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25.11.21

Can I be forced to incriminate my loved ones?

One disturbing truth about violent offences is that, the majority of the time, they occur between two people who know each other. In 2019-2020, 43% of violent crime was committed by an acquaintance, 16% was categorised as domestic violence and only 41% committed by a stranger. Indeed, there were 200,000 of these ‘domestic’ violent offences reported in 2019-2020. This is shorthand for an alleged assault committed by someone living under the same roof. Of course, the person who calls 999 might be the alleged victim, or a child of the family, a guest in the property, or even a concerned neighbour.

The Evidential Stage

Typically, both Complainants and the Accused assume that the Complainant holds the key to the case i.e. if the Complainant withdraws their allegation, then the case will be dropped. This is incorrect. The Complainant does not hold a ‘veto’ over the state's decision to prosecute. Firstly, there might be a wealth of other evidence which police can use to prosecute the suspect, such as:-

  • Audio of the Complainant's 999 call
  • Police bodycam footage or photographs taken of the Complainant at the scene
  • Any medical evidence obtained about the Complainant's condition or injuries shortly after the report
  • Witness accounts about what happened, and
  • The Accused’s own account of events, possibly recorded via the 999 call, by police Bodycam, in police witness statements, or during formal interview post-arrest

These are all evidential tools in helping police to establish the truth. Usually the police will form a pretty confident opinion about what has happened. Proving it to the criminal standard of evidence will be assisted by the cooperation of the parties. But the Complainant’s testimony is not always pivotal. As the technology at police disposal has developed, so-called victimless prosecutions are commonplace.

The Public Interest stage

In a significant proportion of domestic incidents, the Complainant will not ultimately support the prosecution. There are numerous reasons for withdrawing support. The commons ones are:

  1. The Complainant's allegation is true, but the Complainant is in abject fear of the Accused, believing that their support for a prosecution will lead to the Accused taking retribution, either against them or their loved ones.
  2. The Complainant's allegation is true, but prosecution will lead to private, personal or embarrassing information being disclosed in open court. The Complainant is aware that a criminal trial or sentencing is a public forum and (sexual offences aside) the Complainant's identity will not be anonymised,
  3. The Complainant's allegation is true, but the Accused remains a loved family figure and/or a key financial contributor. In this way, the Complainant may want to rebuild the relationship, or may believe they will change, or that the offence was a ‘one-off’. The Complainant may be concerned that a prosecution will undermine the prospect of a happier, stable future together.
  4. The Complainant cannot remember what happened and/or says they were not fit to make a formal allegation to police and/or did not know they had even signed a police statement.
  5. The Complainant's allegation is either false, or so highly exaggerated, that the Accused does not want to be interrogated in court or exposed as a liar.

Where the Complainant’s allegation is false or highly exaggerated, it is hoped that the police will establish this fairly quickly and take a realistic view. However, once the Complainant has provided an initial witness statement, it can be perilous to admit that it contained lies. This will amount to admitting an offence such as wasting police time, perjury, or even perverting the court of justice. Complainants should always take legal advice before providing a second statement which factually contradicts the earlier one.  Where it is appropriate, solicitors can help with the drafting of a statement.

Where the Complainant is in fear of the suspect, there are ways in which the police and the Crown Prosecution Service (CPS) can assist and protect the Complainant. These include the Complainant giving testimony from a remote location which is concealed from the suspect. A key practical question is whether the Complainant has confidence in these protections.

Where the Complainant is concerned either about privacy and/or that a prosecution might ruin their chance of a happy and stable future with the suspect, the position is more complex. The Complainant can make those preferences clear to police and explain why they do not want a prosecution. Ultimately, the police and CPS will proceed based on what they decide is in the public interest. Contrary to popular belief, the Complainant has no special right to prevent the state prosecuting (the concept of individuals 'pressing charges' derives from Hollywood not English law).

Do I have to sign a witness statement for police?

This firm is regularly contacted by Complainants who want to challenge the decision to prosecute either a partner or family member. Sometimes, the Complainant was the person who called police in the first place, but now wants to rebuild and improve their relationship with the Accused, i.e. scenario 3 above. On other occasions, the Complainant did not call police but a neighbour/ passer-by/ CCTV operator did so (the term 'Complainant' being something of a misnomer in these circumstances). The police may have attended and taken a statement from the Complainant.  In certain situations, a Complainant may have limited recollection of events, for example if the parties were intoxicated (which might be the case with an altercation/loud argument).

It is not unusual for police to take the Complainant’s signed statement without fully explaining the full consequences of doing so, i.e. that signing a statement is, in effect, handing over control to the authorities. Legally, the Complainant cannot be compelled to sign a witness statement. But, once signed, the Complainant can then be compelled to attend court. If in doubt about the consequences of singing a statement, the Complainant should seek legal advice - independently of the police and the Accused.

Of course, nobody should have to endure domestic abuse. It will usually be in the public interest to prosecute and punish it. However, the impact of the Complainant’s partner being prosecuted might undermine their own financial and family stability. If the Complainant's partner is likely to lose their job or career as a result of conviction, the Complainant will be concerned about the impact on themselves, any children, and the family home. These are difficult individual decisions which should be considered sympathetically.

I have received a witness summons. What do I do?

If the CPS decision is to continue with the prosecution against the Complainant’s wishes, they will probably apply to court for a witness summons. A summons would compel the Complainant to attend court to give evidence on oath - by means of arrest if necessary. Failure to comply with a witness summons can also amount to contempt of court (which can result in imprisonment or fine).

In this way it is possible for the Complainant to be compelled (against their will) to incriminate their partner in court. Concerns about the use of these legal powers should not be swiftly dismissed. Every case is as unique as every person’s life, and worthy of individual consideration. For this reason, a blanket policy saying “We will always prosecute domestic abuse” is not necessarily helpful.

The first thing to understand about a witness summons is that it can either be opposed in court when applied for, or an application can be made for its withdrawal after notification.

Criminal Procedure Rule (CrimPR) 17.3 requires both that the witness and their evidence (usually the Complainant’s statement) be identified in the application. The Court can issue a witness summons with or without a hearing if they deem it “in the interests of justice”. 

However, CrimPR 17.7 allows a person affected by a witness summons to apply to the court to have it withdrawn. The grounds for having the summons withdrawn are that:-

The Complainant was not aware it was being applied for in advance, and either:-

(i) they cannot give any evidence likely to be material evidence, or
(ii) they can give material evidence, but their duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates, outweigh the reasons for the issue of the summons.

In this way, the issue of a witness summons is not irrevocable. The summons can be challenged post-issue. The Complainant might argue that they are not capable of giving material evidence, e.g. they have no recollection of the incident in question, and do not accept ever being fit to provide a witness statement to police. If so, the circumstances in which the statement was taken would become relevant.

In addition, the Complainant might argue that the compulsion of a summons infringes upon their family rights, or upon their duties to their loved ones. This will be specific to the facts of each case, but it is feasible that compelling a Complainant to incriminate their own life partner could have a calamitous impact.

In terms of timescale, the Complainant must apply to have the witness summons withdrawn as soon as practicable after becoming aware of their grounds for doing so. This is quite onerous because, typically, the Complainant will not have their own legal advice but will have been reliant on guidance from the very officers who are trying to obtain the summons. Simply obtaining a copy of one’s own witness statement from police can be surprisingly difficult.

Perhaps hardened by experience, the police view is usually that any challenge to the witness summons is being orchestrated by the Accused, who is now directing the Complainant from behind the scenes. This cynicism is unhelpful because it can cause police to either patronise or ignore a Complainant who might have their own rational basis for not wanting a prosecution.

The question of whether to compel an unwilling witness boils down to a conflict between the ‘public interest’ as exercised by the police and CPS versus the ‘private interests’ of the Complainant. The inconvenient truth is that some victims of domestic offences simply do not want, or need, the criminal justice process to resolve their private suffering. Sometimes, all the Complainant wanted was police to come and take their partner away long enough to sober up and calm down. Arguably, that is a basic public service. Is it right that the price of that service should necessarily be a witness summons, and with it, an obligation to incriminate that partner in a public courtroom?

Against that, the public interest might be served by detecting and convicting the guilty party, however embarrassing or damaging that might be to the Complainant. Part of that public interest, of course, is to prevent further offences in the future, whether against Complainant or anyone else.

These questions are at the heart of the witness summons conundrum, and they will remain both legally difficult and politically sensitive.

 

Call on 020 3813 5145 or email us to find out how our criminal solicitors can help if you are a seeking advice in relation to a witness summons or an ongoing police investigation.


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Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.


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