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Guilty until proved innocent – the assumption behind the latest government consultation

Penelope Gibbs
16 Mar 2018

One of the reasons for the disclosure problems that have recently come to light is said to be a police culture of always believing the alleged victim. In doing so, police may err on the side of not being sufficiently thorough in going through unused material.

Unfortunately the language and measures proposed  in a new government consultation on “transforming the response to domestic abuse” fall into that trap.

Domestic violence (and abuse) is the scourge of our society which we really need to prevent and stop. But jettisoning the principles of our justice system along the way is not the solution. In our adversarial system, everyone is presumed innocent until, and if, they either admit guilt or are found guilty. As we’ve seen from the disclosure fiasco, some alleged victims, for whatever reason, do not tell the whole truth or the evidence is just not good enough to make for a conviction “beyond reasonable doubt”. This system of assuming someone innocent until the prosecution proves otherwise, protects us from miscarriages of justice.

The new consultation on domestic abuse begins and ends with an implication that all those who accuse are victims, and all those they accuse are perpetrators. “We want to manage perpetrators from initial agency response through to conviction and rehabilitation using effective interventions aimed at preventing abuse and increasing victim safety”. The word alleged is never used either in relation to victims or perpetrators, nor is there any reference to the rights of defendants. The document implies that all failed domestic abuse prosecutions reflect a failure to get the right verdict, rather than the justice system working as it should. According to this consultation, all those accused of domestic abuse are guilty.

I have no doubt that some genuine victims of domestic abuse are intimidated by the court process and refuse to testify even though their abuse continues. And that domestic abuse is difficult to prove given that it happens in private. But the criminal justice at its best examines the evidence (without or without the presence of the alleged victim) and makes a well considered judgement as to whether the defendant is guilty or not. It’s not a perfect system, but is the answer to its faults to make it easier to punish alleged perpetrators?

The civil justice system has a different standard of proof – on the balance of probabilities. The sanctions available are usually not as potentially harmful as imprisonment and/or criminal records. But there is a hybrid of the two systems – anti-social behaviour injunctions (new style ASBOs). An individual can be accused of anti-social behaviour, and an injunction be imposed by a civil court forcing them to, for instance, avoid certain places. If the person then breaches the injunction, they can be sued for contempt of court, and imprisoned. This can easily lead to miscarriages of justice.

The government wants to introduce a domestic abuse ASBO, presumably because they are concerned that perpetrators of domestic abuse are “gaming” the criminal justice system and thus leaving victims unprotected. The proposed Domestic Abuse Protection Order can be imposed on the balance of probabilities on someone who is accused of domestic abuse. It can be imposed by a civil/family/criminal court whether or not the accused has been prosecuted and even after they have been acquitted (!). This Domestic Abuse Protection Order can include:

“both prohibitions (for example requirements not to contact the victim, including online, not to come within a certain distance of the victim, and not to drink alcohol or take drugs) and positive requirements. These positive requirements could include attendance at perpetrator programmes, alcohol and drug treatment programmes and parenting programmes. Electronic monitoring (for example location or alcohol monitoring) and notification requirements (for example the requirement for certain perpetrators to provide the police with personal information such as their address and details of relationship and family circumstances) could also be used as conditions attached to the new order”.

So the government are suggesting significant impositions on liberty be imposed on people simply accused of domestic abuse, but who have never been convicted of it. Call me old fashioned, but I don’t think this is justice, and I doubt it will help stop domestic abuse. The justice system works on trust and credibility. Law abiding citizens, victims, witnesses, and perpetrators need to feel they are being treated fairly by the process, regardless of the outcome. The risk of the new domestic abuse ASBOs is that the recipients will feel so resentful of the process that they won’t comply with any attempt to change their behaviour.

On this one I may be an outlier – if you feel that my take on the new proposals is too harsh, do get in touch. I too want to stop domestic abuse, just not at the cost of our civil liberties.