The Policy for Prosecuting Cases involving Domestic ViolenceIntroduction
Definition of Domestic Violence
Role of the Department of Justice
Charging Policy
Charging Practice
The Reluctant Witness
When the Victim Withdraws Support
Prosecuting against the Wishes of the Victim
Avoidance of Delay
Bail
Binding Over
Offence against Public Justice
Support for Witnesses at Court
Status of Spouse
Nothing in this Ordinance shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceedings.
Sentencing
Conclusion
General
- Domestic violence exists in most societies. It may be divided into emotional, physical, sexual and economic abuse. Prolonged domestic abuse impacts physically and emotionally upon the victim. Women and children are often at particular risk. The perpetrators of violence need to be pursued and brought to justice. In this process the prosecutor has an important role to play.
- Whereas physical abuse has always been treated as a crime, attitudes towards domestic violence have sometimes been ambivalent. It has sometimes been suggested that because an offence occurred in a purely domestic context, it was a matter of purely domestic concern. That view is wholly erroneous. It has been recognised in recent times that domestic violence is a blight on society which is associated with a variety of offences.
- Domestic violence has certain features :
- it is prevalent;
- the violence can be extreme;
- its physical, emotional, mental and financial effects may be long-lasting;
- it often continues until the cycle of abuse is broken;
- the victim is often dependent upon the offender;
- the sanctions imposed upon the offender may also adversely affect the victim.
- Domestic violence may refer to repeated incidents of physical force and verbal aggression arising in a private context, often involving a spouse or child. It may take many forms, such as sexual abuse, assault of one form or another and intimidation. Violence in a private context can have a devastating effect upon the victim as well as upon those with whom the victim has a family or close relationship, and those who suffer, witness it, or are aware of it may, particularly if they are of tender years, be severely affected by its consequences.
- Stopping domestic violence is a priority for the prosecutor. Cases which proceed must be prosecuted effectively, and a multi-agency approach is vital. Criminal proceedings are just one element of this approach, and criminal law and civil law may need to be used in conjunction. Some victims may not wish to pursue criminal action, preferring to make use of civil remedies and other safety and support mechanisms. In deciding whether to prosecute, the safety of the victim, children and other persons involved must be considered.
- Domestic violence is likely to become more frequent and more serious the longer it continues, and may even result in death. This means that proceedings may be required even if the victim does not want them. In such cases, the prosecutor will, through the police, make the fullest inquiries in order to ensure that the decision to prosecute is made against a background of all available information. Prosecutorial decisions must be taken within a framework that promotes the security of those at risk.
Definition of Domestic Violence
- There is no specific offence of domestic violence, as such. ‘Domestic violence’ is a general term which describes a range of behaviour often used by one person to control or dominate another with whom they have, or have had, a close or family relationship. It is often a series of abusive incidents, whether physical or not, that has a cumulative effect on the victim. Domestic violence occurs irrespective of background and circumstance, sexuality, age, disability and gender, but the majority of abusers are male and victims female.
- Domestic violence may be broadly described as any criminal offence which arises out of violence, threatening behaviour or physical, sexual or emotional abuse, between adults who are or have been intimate partners, or else between family members. An adult is any person aged 18 years and over, and family members include mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.
- If an act of violence arises within a domestic context, the perpetrator may be prosecuted for an offence under the general criminal law. For example, the Crimes Ordinance, Cap 200, deals with sexual and related offences, such as rape, incest, indecent assault and criminal intimidation. The Offences against the Person Ordinance, Cap 212, covers such offences as homicide, wounding, assault, forcible taking or detention of persons, unlawful abandonment or exposure of a child aged under two years, and wilful assault, ill-treatment, neglect or abandonment of a child.
- Domestic violence can involve abusers and victims of either gender. The prosecutor should respond appropriately to the needs of all victims of domestic violence, regardless of their gender or age or that of the abuser.
Role of the Department of Justice
- The Department of Justice (‘the Department’) is responsible for the control of criminal prosecutions, free from any interference. The independence of the prosecutor is of fundamental constitutional importance. Prosecution decisions taken with fairness, impartiality and integrity help deliver justice for victims, witnesses, accused, as well as for the public as a whole.
- The police investigate allegations of domestic violence and gather the evidence. The decision to prosecute is that of the prosecutor, not that of the victim or the police. Although full weight is always given to the views of the victim, the prosecutor is not the legal representative of the victim and is not permitted to examine the evidence with the victim. The role of the prosecutor is to prosecute on behalf of the public.
- As the Department is committed to improving the way in which cases involving domestic violence are conducted, a Deputy Director of Public Prosecutions has been appointed as Prosecution Policy Co-ordinator on Victims' Rights. Three senior prosecutors co-ordinate policy in relation to cases involving domestic violence, child abuse, and vulnerable witnesses. The Vulnerable Witness Team of dedicated prosecutors has a specific mandate to uphold the interests of victims and witnesses at every stage of criminal proceedings. The Statement on the Treatment of Victims and Witnesses was issued in 2004 and was reviewed in 2009, and this indicates how prosecutors can safeguard the position of all such persons.
Charging Policy
- Prosecutors should apply The Statement of Prosecution Policy and Practice at all times. This means that prosecutors should consider:
- whether there is sufficient evidence to justify the institution of proceedings on the basis that it affords a reasonable prospect of conviction; and
- whether the public interest requires a prosecution to be pursued. The public interest will normally require that a prosecution be broughtin a case of domestic violence if the victim is willing to give evidence.
- In deciding whether to prosecute a case involving domestic violence, the prosecutor should take the views of the victim into account, without treating them as determinative. The prosecutor should obtain information about the family circumstances and the likely effect of a prosecution on the members of the family. In general, the more serious the offence the more likely is it that the public interest will require a prosecution, even if the victim does not wish to co-operate.
- Domestic violence often occurs in private. The victim may be the only witness who can testify to the commission of the offence, which the accused may deny. Unless the accused admits the offence and pleads guilty, the victim will in all likelihood be required to testify at court. But the prosecutor will actively consider what other evidence may be available. It is not to be assumed that bringing the victim to court to testify is the only way to prove a case.
- On rare occasions, the public interest might not require a prosecution in cases involving domestic violence. Such situations might arise where :
- the violence involved was minimal;
- the accused has no history of spousal or other forms of violence such that the risk to the victim's safety can credibly be assessed as ‘low’;
- the accused is motivated to change (as evidenced, for example, by participation in counselling sessions).
Charging Practice
- The charges in domestic violence cases should reflect the seriousness and persistence of the accused's behaviour, the probable intent, the severity of the injury caused and its long-term effects. They must provide the court with the capacity to impose a sentence which adequately reflects the seriousness of the crime. If an accused offers to plead guilty to a different and possibly less serious charge, this will only be accepted if it enables the court to pass a sentence that reflects the seriousness of the offence. The victim should be advised of the charges brought, and alerted to any change, and consulted and advised when necessary.
The Reluctant Witness
- In domestic violence cases, victims are sometimes reluctant to testify for various reasons. Experience has shown that the greater and the earlier the support a victim receives, the less likelihood is there that he or she will recant or become reluctant. The prosecutor will wish to be satisfied that police and social workers are liaising with the victim and providing appropriate support services. The prosecutor should always seek an early date for trial if the case involves a vulnerable witness or the interests of justice otherwise so require.
When the Victim Withdraws Support
- If the victim decides to withdraw support for the prosecution, the prosecutor must decide whether or not to prosecute. If the information about the victim's decision has come from the accused, the police will be asked to make further inquiries. If the victim confirms that the information is true, the police will be asked to take a written statement from the victim explaining why support has been withdrawn, saying whether the original statement was true and indicating whether the victim has been put under any pressure to withdraw support and providing any other valuable information.
- The prosecutor should ask the police to give their views about the evidence in the case and how they think the victim might react to being required to attend court. If the victim confirms that the complaint is true but still wishes to withdraw, the prosecutor should consider whether it is possible to continue without the victim's evidence, and if so whether it is in the public interest to prosecute. The safety of the victim, children or any other potentially vulnerable person will be a prime consideration in deciding how to proceed.
Prosecuting against the Wishes of the Victim
- In some cases the violence may be so serious, or the previous history shows such a real and continuing danger to the victim or the children or other person, that the public interest in pursuing a prosecution has to outweigh the victim's wishes. If the prosecutor concludes that the case should continue and that it is necessary to rely on the victim's evidence to prove the case, it has to be decided :
- whether an application could be made to use the victim's statement in evidence without the victim having to testify, under Section 65B of the Criminal Procedure Ordinance, Cap 221;
- whether the prosecution can proceed by helping the victim to attend court by the use of special measures, such as CCTV;
- whether the victim should be compelled to give evidence in person in court.
- If the victim freely decides to withdraw support for the prosecution but there is still enough evidence to proceed, the prosecutor must decide whether to prosecute in reliance upon the other evidence. The safety of the victim and any children will be considered at this stage. Relevant factors also include :
- the seriousness of the offence;
- the victim's injuries, whether physical or psychological;
- the chances of the accused offending again;
- whether the accused planned the attack;
- if the accused used a weapon;
- the making of threats before or after the attack;
- if there are any children living in the household;
- the continuing threat to the health and safety of the victim or anyone else who is, or may become, involved;
- the current state of the victim's relationship with the accused;
- the history of the relationship, particularly if there has been any violence in the past;
- the accused's criminal history, particularly any previous violence.
Avoidance of Delay
- The prosecutor should seek to ensure that the case proceeds expeditiously and without any undue delay, because:
- the delay may distress the victim;
- the longer the delay, the longer the victim will be at risk and under pressure;
- the delay may adversely affect the willingness of the victim to testify, or, in the case of a child, the capacity to recall the details of the offence.
- The Department has adopted various administrative procedures to ensure that domestic violence cases are identified and that they are processed expeditiously. These procedures include:
- legal advice in domestic violence cases will be provided as soon as possible upon receipt of the case files from the police, irrespective of the venue of trial;
- advice will be given on an urgent basis even when the full transcripts of video-recorded statements or translations of documents are not available on the file;
- where possible domestic violence cases will be tried in Chinese.
- If a delay is unavoidable, the victim should be informed of the position by the police, and the reasons for the delay.
Bail
- Depending on the circumstances of the case, the prosecutor may consider seeking a remand in custody or conditional bail to protect the victim from the risk of danger, threats, pressure or other acts by the accused which might obstruct the course of justice. If so, the prosecutor will be assisted by information concerning such matters as :
- the likely repetition of acts of violence;
- the detailed history of the relationship;
- the existence of any civil court order;
- the current domestic arrangements.
- A court can impose any condition that seems appropriate in the circumstances of a particular case. Some common examples of bail conditions imposed by courts include:
- the accused is not to contact any of the prosecution witnesses including the victim;
- the accused is to reside at a named address;
- the accused is to report to a named police station on a given day or days at a given time;
- the accused is to provide security (i.e. an amount of bail money) to the court;
- the accused is to provide a surety.
- If bail is granted by a district judge or magistrate in a case where serious injury resulted or where there is a history of domestic violence whilst on bail, the prosecutor should consider an application for review under Section 9H of the Criminal Procedure Ordinance, Cap 221. The power to make such an application has been delegated to the DPP and the DDPP. The consequence of making such an application is that the accused must be remanded in custody pending consideration of the matter and must be brought before a Justice of Appeal or a Judge of the Court of First Instance as soon as practicable, and in any event within 48 hours, for the judge to decide whether the accused should remain in custody.
Binding Over
- A bind over is an order which the court can make when it considers that the suspect may offend again. The suspect must agree to behave properly for a period of time. There must be sufficient evidence to support the complaint and to justify the making of the order. A bind over order may be appropriate as an alternative to prosecution if the case is minor and :
- the parties are reconciled;
- there is no history of violence;
- there is concern over a future breach of the peace.
- A bind over order may also be sought if the victim withdraws support for the prosecution, and it is decided to discontinue the case. Even then, the prosecutor should only seek such an order if there is still sufficient evidence to sustain the complaint. A bind over order operates in the interests of preventive justice.
- An accused may offer to be bound over on condition that the charges are dropped. The prosecutor must approach any such proposal with great caution. It should only be accepted after a careful consideration of the possible consequences and whether it would be in the public interest to do so. The views of the victim should also be taken into account. To dispose of the case in this way is not likely to be in the public interest in cases involving serious violence. If, however, the consequences of prosecution would be out of all proportion to the seriousness of the offence or to the penalty which the court is likely to impose, a bind over order may satisfy the interests of justice.
Offence against Public Justice
- If the police investigation reveals that the victim has been intimidated, threatened or assaulted by the accused with a view to affecting the outcome of any proceedings or any testimony to be given, this may give rise to a specific charge, and the prosecutor should also consider whether the evidence will support an additional charge of attempting to pervert the course of public justice.
Support for Witnesses at Court
- Witnesses often feel intimidated by the court. Children, in particular, sometimes become distressed, confused, silent and afraid. To help witnesses, the prosecutor should :
- ask police to arrange assistance for the young, the elderly and the disabled to get to court;
- encourage the provision of proper facilities at court for the reception of witnesses;
- seek the admission of video recorded evidence;
- ask for children/the mentally incapacitated/witnesses in fear to be permitted to give evidence, if appropriate, by means of a live television link;
- consider the use of screens in the court room to shield a victim or witness from the accused;
- consider the clearance of the public gallery in sexual offence cases or cases involving intimidation;
- in cases involving sexual offences, where appropriate, apply for an order that the witness’ identity remains anonymous.
- Decisions about whether special measures are required should be taken at the earliest opportunity, and ideally when charging decisions are made. However, circumstances may change or witnesses may change their minds and it is possible to apply for special measures at any stage of the proceedings.
Status of Spouse
Nothing in this Ordinance shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceedings.
- If it is decided that a victim should be compelled to attend court, the prosecutor must keep Section 6 of the Evidence Ordinance, Cap 8, in mind. It provides:
- However, Section 57 of the Criminal Procedure Ordinance, Cap 221, provides that the spouse of the accused shall be competent to give evidence for the prosecution, unless both spouses are standing trial together. Subject to the same exception, the spouse of an accused is also compellable to give evidence for the prosecution in respect of any specified offence. A specified offence is one which:
- involves an assault on, or an injury or threat of injury to the spouse of the accused;
- involves causing the death of, an assault on, or an injury or threat of injury to a child of the family who was under the age of 16 or a mentally incapacitated person (or is so incapacitated at the time of trial);
- is a sexual offence committed on a child of the family who was under the age of 16 or a mentally incapacitated person (or is so incapacitated at the time of trial);
- consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of any of the aforementioned offences.
- If the spouse of the accused is called to testify for the prosecution, he or she may apply to the court for an exemption from giving evidence. In exercising its discretion, the court will consider whether the giving of evidence under Section 57A of the Criminal Procedure Ordinance, Cap 221 would cause a substantial risk either of serious harm being caused to the marital relationship, or of serious emotional, psychological or economic consequences for the spouse. The court will also have regard to the nature and gravity of the offence and the importance of the evidence the spouse is in a position to give, and whether there is insufficient justification for exposing the spouse to that risk.
Sentencing
- Once the accused has been convicted, the prosecutor should ensure that the court is in a position to sentence appropriately. The prosecutor may need to advise the court of the victim's views and circumstances. The court may have to be alerted to relevant guideline and tariff cases. An abuse of trust in a domestic context will invariably be an aggravating factor, as also will child assault. If the accused has been convicted of a specified offence as defined in the Organized and Serious Crimes Ordinance, Cap 455, the prosecutor may supply the court with information concerning the nature and extent of any harm caused, directly or indirectly, to any person by the crime. The definition of ‘specified offence’ is such as to include the consequences of the offence, whether physical, psychological or financial.
- It is the duty of the prosecutor to ensure that the court sentences the accused on a correct factual basis. The evidence should support every ingredient of the charge. The prosecutor must correct any misleading information given by the defence. The court should be provided with information to help it to decide whether to make any order it has power to make in addition to the main sentence. In an appropriate case the prosecutor should apply for a compensation order or a restitution order.
- If the accused pleads guilty to an offence but disagrees with the prosecution version of events, the court has to decide on which version to sentence. In order to do this, the court may hold a ‘Newton hearing’. The court will only hold such a hearing if it feels that there would be a substantial difference in sentence if the accused were to be sentenced on the prosecution’s version of events. If there would be no substantial difference to the sentence, the accused is sentenced on his account.
Conclusion
- The Department is committed to improving the way domestic violence cases are dealt with in the criminal justice system. Victims and witnesses must have confidence in the way in which their cases are conducted. The function of the prosecutor is to help to develop best practice in the handling of victims, to make the right decisions on cases and to prosecute effectively. Decisions should be based on the fullest evidence and background information. Through the pursuit of viable prosecutions those responsible for domestic violence should be brought to account.
General
- The prosecutor needs to be familiar with :
- The Prosecution Manual (2001) [Chapters 25 (Witness Protection), 30 (Vulnerable Witness), 32 (Bind Over Orders) and 36 (Victims' Rights)]
- Procedural Guidelines for Handling Battered Spouse Cases (2004) [Social Welfare Department]
- Legal Circular No. 1 of 2005 (Priority to be given to vulnerable witness cases)
- Procedural Guidelines for Handling Sexual Violence Cases (2007) [Social Welfare Department]
- The Victims of Crime Charter (2007)
- Legal Circular No. 14 of 2008 (Binding Over)
- Legal Circular No. 18 of 2008 (The Fast-tracking of Domestic Violence Cases)
- The Statement of Prosecution Policy and Practice (2009)
- The Statement on the Treatment of Victims and Witnesses (2009)