A paper for the UNODC on the approach by the Crown Prosecution Service (CPS) in England and Wales

Introduction – The CPS Violence against Women and Girls Strategy

The CPS is committed to tackling Violence against Women and Girls by bringing offenders to justice. We were the first British Government department to publish a Violence Against Women (VAW) Strategy and Action Plan. The strategy, published in 2008, provides a framework for improving prosecutions in cases of:

.                 domestic violence, including harassment;
.                 forced marriage and so-called honour crimes;
.                 rape and sexual offences;
.                 child abuse;
.                 crimes against older people;
.                 female genital mutilation (FGM);
.                 pornography;
.                 prostitution; and
.                 human trafficking.

The CPS recognises the importance of improving victims’ safety and is committed to working with the police and other agencies, including specialist support services, to ensure that the victims’ needs are addressed.

In 2012, we undertook a review of the effectiveness of the strategy and published an Assessment of Successdocument. This highlighted the importance of the work we do with local partners and communities through Local Scrutiny Involvement Panels, and nationally through the VAWG External Consultation Group.

One way in which we have concentrated on the quality of our cases is by monitoring our performance. The VAWG assurance process involves a six monthly report from senior managers in every CPS Area on the quality of VAWG prosecutions. This process has been successful in ensuring better implementation of policy from the pre-charge stage through to presenting the case at court.

Homicide – the law in England and Wales

Homicide offences under the law in England and Wales are gender neutral. They do not include gender-related killing, either in respect of the gender of the person doing the killing or of the person killed.

MurderThis crime is a common law offence committed, where a person:

  • of sound mind and discretion;
  • unlawfully kills (not in self-defence or any other justified killing);
  • any reasonable creature (human being);
  • in being (born alive and breathing through its own lungs);
  • under the Queen’s Peace;
  • with intent to kill or cause grievous bodily harm (GBH).

Manslaughter

This can  be committed in one of three ways:

  1. killing with intent to kill or cause GBH but where the defendant relies on a partial defence including: loss of control, diminished responsibility or killing pursuant to a suicide pact.
  2. grossly negligent conduct involving risk of death which caused a death; and
  3. an unlawful act involving a risk of some harm, that resulted in death.

The term “voluntary manslaughter” is commonly used to describe a manslaughter falling within (1),  while (2) and (3) are referred to as “involuntary manslaughter”.

Infanticide

Section 1of the Infanticide Act 1938, as amended by section 57 of the Coroners and Justice Act 2009, provides that infanticide can apply:

“Where a woman:

  • by any wilful act or omission;
  • causes death of her child being a child under the age of 12 months;
  • but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child;
  • or by reason of the effect of lactation consequent upon the birth of the child then;
  • notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder;
  • she shall be guilty of an offence of infanticide;
  • and may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.”

Child Destruction

Section 1 of the Infant Life (Preservation) Act 1929 prohibits the killing of any child capable of being born alive.

Procuring a miscarriage

Section 58 of the Offences Against the Person Act 1861 makes abortion an offence. However, section 1 of the Abortion Act 1967 provides that a person should not be guilty of an offence when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners have formed a view, in good faith, that the health risks (mental or physical) of continuing the pregnancy outweigh those of termination.

This gives a wide discretion to doctors in assessing the health risks of a pregnant patient. It does not expressly prohibit gender-specific abortions; rather, it prohibits any abortion carried out without the agreement of two medical practitioners.

Case example – Attempted foeticide

In 2013 the CPS was asked to review two separate allegations against two medical professionals in relation to requests for an abortion made by a pregnant woman, E. Unknown to either doctor E was acting on behalf of an investigative journalist and had no intention of aborting her foetus. Both doctors were providers of pregnancy terminations at the time of the alleged offences. E pretended to them that, for reasons including a previous pregnancy that was lost at 22 weeks due to chromosomal abnormality, she wanted an abortion because she did not want to give birth to a girl. She claimed that a test carried out in France had already revealed that the foetus was female.

Although the abortions did not take place, attempting to commit a criminal offence – that is, doing something that goes further than just preparing to commit it – is also a crime in its own right under the Criminal Attempts Act 1981.

Following intense media interest in the case, due to perceptions that it related to gender specific abortion, the Director of Public Prosecutions (DPP) took the unusual step of publishing the reasons for his decision not to prosecute on the CPS website. See: http://www.cps.gov.uk/news/latest_news/dpp_abortion_case_fuller_reasons/

The statement explained that, applying the two stage Full Code Test, which must be met before a suspect is charged, the DPP concluded that there was a realistic prospect of conviction against both doctors (the evidential stage). In relation to Dr S: “The prosecution case would be that although Dr S did not authorise a termination on the basis of the gender of the foetus alone, she authorised it on the simple basis that E wanted an abortion and she, Dr S, was not going to ask E questions beyond whether E was sure about her decision.”

Similarly Dr R authorised a termination on the simple basis that E wanted an abortion and on balance there was just sufficient evidence to provide a realistic prospect of a conviction.

The DPP then considered whether the prosecution of Dr R and Dr S was required in the public interest, taking into account that the offence of procuring a miscarriage is a serious offence and Dr R and Dr S were professionals in a position of trust. He made clear, however, that the question in this case is not whether a prosecution of Dr S and Dr R is required in the public interest on the basis that they authorised a gender-specific abortion. Rather, the question is whether a prosecution is required on the basis that they failed to carry out a sufficiently robust assessment of the risks to E’s health of continuing her pregnancy.

The DPP concluded that the public interest in prosecuting a case on the basis of a failure to carry out a proper risk assessment was not made out. In reaching this decision he took into account the absence of guidance on how a doctor should go about assessing the risk of physical or mental health and of a proper process for recording the assessment.

For the doctors to be convicted the prosecution would have to prove, beyond reasonable doubt, that the assessments carried out by the doctors were carried out in bad faith or carried out in such a way that fell below a standard which any reasonable doctor would consider adequate. Without published guidance this would be extremely difficult to prove.

Furthermore the DPP was satisfied that the GMC, the doctors’ regulatory authority, was carrying out an investigation and had powers in relation to the future professional practice of the suspects and was better placed to evaluate the proper approach that doctors should take to assessing health risks.

The DPP concluded that: “As with the evidential stage of the Code test, the public interest in this case is finely balanced. But, if the narrow basis of any prosecution is kept firmly in mind, the public interest factors against prosecution outweigh those in favour.”

“In coming to this conclusion, we have also taken into account the level of harm to the victim in the case, and the fact that in these cases no abortion took place or would have taken place.”

Honour Based Violence

The CPS defines so-called honour based violence as:
‘‘a crime or incident, which has or may have been committed to protect or defend the honour of the family and/or community’.

Honour based violence is used to control behaviour within families or other social groups to protect perceived cultural and religious beliefs and/or honour. Such violence can occur when perpetrators perceive that a relative has shamed the family and/or community by breaking their honour code. So called honour based violence includes a variety of violent crimes carried out predominantly, but not exclusively, against women (men usually become victims when they are accused or suspected of bringing a woman’s reputation into disrepute). The aim of honour based violence is to punish the ‘offender’ for bringing ‘shame’ or ‘dishonour’ on the family or community whilst sending out a warning to others about what happens to those who transgress. ‘Honour Based Violence’ is often committed with some degree of approval and/or collusion from family and/or community members.

Offences committed in the name of honour can include murder, fear of or actual forced marriage, controlling sexual activity, domestic abuse (including psychological, physical, sexual, financial or emotional abuse), child abuse, rape, kidnapping, false imprisonment, threats to kill, assault, harassment, forced abortion. This list is not exhaustive.

Cases of this type can be very difficult to prosecute and pose potentially high risks to witnesses. Of the obstacles witnesses face when reporting cases to the police, the main one is likely to be the difficulty of taking a stand and rejecting the family or community’s beliefs.  Victims and witnesses are likely to require sensitive and careful handling, especially with regard to their care and support.

As stated above, the CPS views honour based violence beneath the overarching VAWG strategy. Crimes of this nature often occur in a domestic setting and are carried out by male family members against women within the family. As such, our policy for prosecuting cases of domestic violence is likely to apply to cases of honour based violence

The CPS introduced flagging of cases involving honour based violence and forced marriage in April 2010 to assist with case monitoring. When registering a case on the CPS Case Management System (CMS) a flag is applied to the record.

The CPS has appointed prosecutors who are specialists in honour based violence to handle relevant cases across the CPS. Working with partner agencies with specialist knowledge, and especially with those providing support to victims, is essential to ensure that prosecutors understand the dynamics of this type of case and the pressures that witnesses face.

Case example – Honour based violence 1

A husband who set fire to his house, killing his wife, was found guilty of murder and arson.

Birmingham Crown Court heard how 56-year-old Mohammed Riaz Inayat deliberately set fire to his house on 17 April 2013 to stop one of his daughters flying to Dubai to marry her boyfriend as he believed it would bring dishonour to the family. His daughter and wife were due to catch a flight to Dubai later that same day where she was going to get married.

While his wife, three daughters and a family friend slept upstairs, the defendant used petrol as an accelerant in the family home and then set it on fire, trapping his family upstairs.

Neighbours called the emergency services and they tried in vain to rescue the occupants of the house. The three daughters and family friend jumped from the first floor bedroom windows resulting in them suffering broken bones and burns.

The defendant’s wife, Naika Inayat, died as a result of smoke inhalation.

Following a detailed police and fire service investigation, Inayat was charged with the murder of his wife and arson.

Zafar Siddique, Deputy Chief Crown Prosecutor from West Midlands CPS, said: “Crimes committed to supposedly defend a family’s honour will not be tolerated in our society and today’s conviction … demonstrates that honour-based violence and forced marriages are ultimately about men policing the behaviour of women. This can include rights as fundamental as a choice of partner, as in today’s case, and this abuse can escalate frighteningly quickly from controlling behaviour to murder.” 

Case example – Honour based violence 2

In 2012 the parents of Shafilea Ahmed were convicted of her murder with the help of evidence from her sister. They were both sentenced to life imprisonment with a minimum tariff of 25 years. This case was prosecuted within the context of child abuse, honour-based violence and domestic abuse. It took nine years to bring the prosecution to court as it was not possible until one of the family spoke out. The sister was given support for court and special measures, including being screened from her parents, to enable her to give her best evidence in court.

Paul Whittaker, Chief Crown Prosecutor for CPS Mersey-Cheshire, said: “Despite the best efforts of the defendants to derail the investigation into her death by subverting witnesses, including their own children, the Crown Prosecution Service and Cheshire Police have worked tirelessly to gather the evidence and present it to a jury. The statement of Alesha Ahmed, Shafilea’s younger sister, was crucial to our case and today’s result is a testament to her courage over the last two years.

“There are many ways to describe what happened to Shafilea: child abuse, domestic violence and honour-based violence being just three. However you choose to characterise it, the CPS is committed to convicting perpetrators such as the Ahmeds. But to do that we need victims and other family members to break ranks and give evidence as Alesha Ahmed did. If you do come forward, this case has shown that the justice system will not let you down.

“The word ‘shame’ has been heard many times during the course of this trial, but the shame is not on Shafilea, it is on her parents.

“Why did they abuse her? Why did they kill her? Put simply, it was because she challenged their regime and refused to conform to their expectations. She wanted to choose how she lived her life and who she married, choices that are fundamental freedoms for any citizen of the United Kingdom.”

Domestic Violence (DV)

The British Government definition of domestic violence is:
“any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality.  This can encompass, but is not limited to, the following types of abuse:

  • psychological
  • physical
  • sexual
  • financial
  • emotional

“ Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependant by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

“Coercive behaviour is: an act or pattern of acts of assaults, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim. ”
Family members are defined as mother, father, son, daughter, brother, sister and grandparents whether directly related, in-laws or step-family.

As is the case with honour based violence there is no specific offence of domestic violence which is an umbrella term covering a range of criminal offences. In relation to physical violence, this would range from an assault that results in minor or no injuries to, at the other end of the scale, the death of the victim.

For the purposes of our own domestic violence monitoring, we will flag cases involving victims under the age of 18 as domestic violence and child abuse (and any other appropriate flag) where those situations arise.

All CPS prosecutors have received training in prosecuting domestic violence.

Sentencing Guidelines Council (SGC) – Overarching Principles Domestic Violence

In 2006 the SGC published the overarching principles that apply when sentencing DV offenders. The guideline which provides courts with advice on assessing the appropriate level of sentence identifies abuse of a position of trust and abuse of power as factors increasing a defendant’s level of culpability and influencing the severity of the sentence.

According to the guideline ‘trust’ implies a mutual expectation of conduct that shows consideration, honesty, care and responsibility. In some such relationships, one of the parties will have the power to exert considerable control over the other. The guideline states:

“In the context of domestic violence:

  • an abuse of trust, whether through direct violence or emotional abuse, represents a violation of this understanding;
  • an abuse of power in a relationship involves restricting another individual’s autonomy which is sometimes a specific characteristic of domestic violence. This involves the exercise of control over an individual by means which may be psychological, physical, sexual, financial or emotional.”

The guideline also identifies factors indicating a more than usually serious degree of harm, including:

  • Presence of others e.g. relatives, especially children or partner of the victim.

Furthermore statutory provisions allow for an increase in sentence where criminal offending is aggravated by sexual or violent behaviour. The relevant provisions are set out at section 5 of Schedule 21 of the Criminal Justice Act 2003, which provides that a murder involving sexual or sadistic conduct is normally to be regarded as sufficiently serious for the starting point, in determining the minimum tariff, to be thirty years.

Case example – Domestic homicide

Jeanette Goodwin and Martin Bunch had been in an on and off personal relationship for approximately 8 years. As the relationship became more serious, Bunch’s behaviour became increasingly more violent and controlling and a number of domestic disputes were reported to police.

On 26th June 2011, Bunch was arrested on suspicion of harassment and threats to kill Jeanette Goodwin. On 27th June 2011, he was charged with harassment of her and also with an offence of assault occasioning Actual Bodily Harm upon an unrelated male. An application by the prosecution for a remand in custody was rejected and Bunch was bailed with an electronic tag. He was subsequently arrested on 3 occasions for breach of bail and for unauthorised removal of the tag.

On 24th July 2011 Jeanette Goodwin telephoned police reporting further harassment after Bunch turned up at her address begging her to talk to him. Later that day the police installed a temporary personal protection alarm at her home. Soon afterwards the alarm was activated after Bunch called at Jeanette’s home and threatened her estranged husband, Mark Goodwin, who was also at the house. Following the threats Mark left the house. He then tried to re-enter via the front door, and when unable to do so he went to the rear garden where he found Jeanette collapsed and bleeding heavily from multiple stab wounds inflicted by Bunch.

At trial Bunch was convicted of Jeanette Goodwin’s murder and sentenced to life imprisonment with a minimum tariff of 27 years.

Aggravated features in the case included:

  • Murder of a former partner
  • Offence committed whist the Defendant was on bail.
  • Use of a weapon
  • Large number of blows inflicted

Under the Victim Focus Scheme – Enhanced CPS Service for Bereaved Families – the close relatives of the deceased were offered a meeting with the prosecutor to explain the role of the CPS, the court process, progress to date and to outline the Victim Personal Statement Scheme (enabling family members to explain to the court the impact the case has had). They also had the support of a police Family Liaison Officer.

For monitoring purposes the case was flagged electronically as: Domestic Violence, Homicide, and Victims Focus Scheme.

This case demonstrates the speed with which domestic violence can escalate from relatively minor offending to murder.

Conclusion

Although the law in England and Wales does not include offences of gender specific homicide the application by the CPS of its VAWG strategy ensures that cases involving domestic violence and so called honour based violence are taken very seriously. This includes highlighting aggravating features when presenting the evidence at court to ensure that any sentence is an appropriate reflection of the offending behaviour as well as recognising the potential future risk that is posed to other women and girls by the offender.

Charlotte Triggs
Senior Policy Advisor
Charlotte.triggs@cps.gsi.gov.uk