A
Procurator Fiscal’s View
Elizabeth Bott, Senior Procurator Fiscal Depute, Policy Group,
Crown Office
Good
morning, ladies and gentlemen. I am delighted to be able to
speak to you this morning on this important topic and to share
with you my experiences, my concerns and my hopes for a better
future. I also hope to learn from this conference and to take
away with me, ideas that I can pass on to my colleagues in the
hope that we will make progress in the way that we deal with
domestic violence.
I
realise that I am pushing at an open door when I suggest that it
is important for all those involved in the criminal justice
system to share their knowledge and experience about how to deal
with these situations. We each have our job to do and our
responsibilities to observe. We must not seek to interfere and
force our own ideas onto others but rather seek to respect the
position of others in the scheme of things and to understand,
assist and co-operate as much as we are able.
In trying to
deal with the problem of domestic violence we have to have some
understanding of the issues and it would be helpful would it not
if we could agree on some common ground? Here, therefore, is
one thing that I am sure that you will agree with me - and
that is:
that domestic
violence only occurs in the homes of the lower paid and the
unemployed. It only occurs on the very rarest of
occasions in the homes of the aristocracy, Members of
Parliament, lawyers, police officers, doctors, architects,
accounts, business men, social workers, teachers etc, etc - in
other words - dare I say it - amongst the middle or upper
classes; and only when they drop from grace.
I know
this, because in 20 years as a procurator fiscal I have only
ever had a handful of such cases reported to me; one involved a
very successful business man, another a police officer - both
indictable cases - and the only other one that I can recall was
a notorious murder case involving a social worker.
You will no
doubt join with me in agreeing that this is because these people
do not know what stress is about. They never drink to
excess, are invariable sensible, confident, even tempered people
who always form strong relationships with equally sensible,
confident, even tempered people, live in neat, comfortable homes
free of all financial worries and have anxious to please and
well disciplined children. In other words "the very model of
propriety and good behaviour" - and if everyone behaved like
they do we would not be here!
I am
stunned - I see from your reaction that you do not agree with
me. Have I got it wrong? Have I been suffering under a delusion
all these years?
Can I
reassure you that I am not as naive as these last remarks
may have led you to believe. Nevertheless, can I also assure you
that I am speaking the truth when I say that I, personally, have
only dealt with a few reports of this nature from the sort of
background to which I have referred and yet I am in
absolutely no doubt that domestic violence of every description
knows no social barriers. The task is to empower victims
to come out of the woodwork.
If, then, we
all reject my above hypothesis - what does this mean?
What keeps the lid on this sort of behaviour in some social
circles but not in others?
I am
sure there are innumerable answers - the fear of becoming an
outcast - "one does not talk about this sort of thing" - the
fear of the financial "down stepping" if moving out of the
household of the wage earner - the perceived social humiliation
if what is happening became known - perhaps, conversely, the
ability to walk out without any public statement because of
financial independence.
Were
the cases that I have mentioned, then, the tip of the iceberg?
It is quite
obvious, as has already been commented on by the speakers who
have already addressed you, and I am sure will address you -
that domestic violence - or indeed violence of any
sort is unacceptable and not to be tolerated. It is
not just sociably unacceptable, it is a CRIME.
In the
domestic scene it can manifest itself as assault, and as
we have heard Chief Superintendent Dickson say today - assault
of the gravest kind; breach of the peace, which can be of
varying degrees of seriousness, malicious mischief,
vandalism, breach of matrimonial interdict - to name the
more common crimes.
As you will
all know, the procurator fiscal is solely responsible, in
Scotland, for the investigation and prosecution of all crimes
and for the investigation of all sudden and suspicious deaths
within his jurisdiction. As far as the crime of domestic
violence is concerned, any reports received by the procurator
fiscal will come almost exclusively from the police. Before the
procurator fiscal can initiate proceedings in relation to this
crime - or indeed, any other crime of which he is given notice;
he must be satisfied as to two points:
a) Is there a
sufficiency of evidence?
b) Is the
prosecution in the public interest?
The
procurator fiscal must be satisfied as to both these
conditions before proceeding with a prosecution.
From what I
have already said you will have understood that the question of
public interest is not an issue here.
Domestic violence is unacceptable, a crime and
will not be tolerated.
The second
condition, however, is often the more difficult of the two to
fulfil. I say often because sometimes the question of
public interest does arise when the Crown are looking at finding
corroboration from young child witnesses living within the
domestic situation. A sufficiency of evidence
means that there must be corroborative evidence -that is
to say - evidence from two sources. The Crown's starting point
would be the complaint of the victim but that requires to be
corroborated and this is where the Crown often comes across its
difficulties. The offence generally happens in the privacy of
the perpetrator's home and corroborating evidence can,
therefore, be limited. I do not want to labour this point,
because all of us here are fully aware of the evidential
problems caused by lack of sufficiency presented by these
situations.
As soon as
the procurator fiscal is satisfied that there is a
sufficiency of evidence and that in normal
circumstances a prosecution in the public interest
would be merited; a range of options is available to him
when considering what action to take. These are:
Sheriff
Sheehan will, I am sure be discussing with you the full powers
of sentence that are available to sheriffs and judges. However,
I mention these very generally because, in determining whether
or not to prosecute, a procurator fiscal must be aware, not only
of the range of his own powers but also the range of
powers open to the court in which the case is to be
prosecuted.
However, it
is not enough even to look at these two aspects of a case. In an
attempt to make the most appropriate decision at the start of
proceedings, the procurator fiscal must be fully informed
not only as to the circumstance of the case but also as to the
history and background of the case including any
mitigating or aggravating factors surrounding the circumstances
of the offence:
nature of the
injury - victim pregnant - accused drunk - under the influence
of drugs - in front of the children - child witnesses - victim
is likely to retract her statement - fear - family needs support
- financial/housing problems - existence of matrimonial
interdicts - divorce proceedings - separation agreements etc etc
-history of the accused - including past criminal conduct
- repetition - any relevant pointers as to his attitude to the
offence and the victim's attitude - other charges .....
These
are all relevant because these factors can have a bearing on
sentence and consequently a bearing on the decision to prosecute
and/or the selection of the forum in which the case is to be
prosecuted.
For this
reason the quality of the initial police report is
of the utmost importance. At the same time, on a practical note,
I have to sound a warning of time and resource constraints
on all reporting and decision making agencies.
WARNINGS - VERBAL OR WRITTEN
The
procurator fiscal may take the view that there is a sufficiency
of evidence to prove that the accused has committed the offence
but that the public interest is met by the individual receiving
a warning. Such a warning is not issued on a conditional basis,
nor can it involve asking the accused to do something - for
example to take part in an education programme.
The
warning is most commonly intimated by means of a letter to the
individual, although in some more serious circumstances, it may
be considered to be more appropriately given personally by the
procurator fiscal at his office.
Warnings can be relatively swiftly administered. There is some
evidence to suggest that early intervention can be effective
especially when administered to first offenders.
A
procurator fiscal warning can, in my view, therefore, have some
limited use in cases of domestic violence.
DIVERSION
For the
Procurator Fiscal Service, the purpose of diversion is
summarised in our departmental guidance, as being:
"to
obtain, in a case in which prosecution would otherwise to
justified, a disposal which, having regard to the personal
circumstances of the accused, is more satisfactory on
humanitarian grounds, than prosecution or which may prevent the
re-occurrence of offending conduct through early or intensive
intervention outwith the court".
There
is no doubt, that mediation and reparation, even at the most
basic level, can provide a very effective form of diversion in
some instances. However, there are a number of jurisdictions in
which a diversion scheme is not available. Diversion is also a
time consuming exercise. It demands an existing scheme, a
willingness of the scheme to take on the individual and a
reciprocal willingness by the individual to take part in the
scheme. There has to be an agreement that if the individual does
not fully participate, he realises that he can still be
prosecuted and it requires the Procurator Fiscal Service to
monitor the progress of the individual on the scheme. If the
diversion is unsuccessful there is always the dilemma of the
appropriateness of commencing proceedings in view of the
inevitable time lapse between the offence and proceedings.
Again,
therefore, in my view, diversion at this stage of the
proceedings has limited value.
FISCAL
FINES
Under
the Criminal Procedure (Scotland) Act 1995 a procurator fiscal
can offer an accused person the opportunity of paying a fixed
fine up to a maximum of £100 for certain minor statutory or
common law offences. It is generally accepted that this sort of
disposal would not be appropriate in a case of domestic violence
as it fails to address any of the issues involved.
It may,
therefore, come as a surprise to you that contrary to popular
belief, procurators fiscal do want to take
proceedings in cases of domestic violence. As I am aware that
there are people within, even the Criminal Justice System who
doubt this fact, there is obviously a need to ensure that this
message is received and accepted by the victims of this crime.
If I can
digress for a moment - the image of the procurator fiscal as
being male - stereotyped, in an ivory tower and reluctant
to prosecute because the case involved a winging female partner
- is archaic. Just under 50% of procurators fiscal, are women.
Women have reached all but the two highest grades of the Fiscal
Service - namely Crown Agent and DCA. (When I joined the Fiscal
Service in 1977, there were less than 10 women in the Service).
A check with Personnel Section yesterday revealed that one third
of procurators fiscal are under the age of 35 and 54.6% of
procurators fiscal are under the age of 45.
As I
said, I digress .....
The
main problem faced by a procurator fiscal in marking cases of
domestic violence are those of:
CORROBORATION
I do
not want to say too much about this because many of the problems
are well known to you and time is limited. However, while
acknowledging that there is a problem, it is also necessary to
attempt to restrict it as much as possible. Much can be done by
the police in the early stages of the investigation, though I
fully appreciate that they are often carrying out their
enquiries at a time of high tension, when they are also having
to cope with defusing the situation and caring for the injured.
RIGHT
OF ACCUSED TO CONFRONT HIS ACCUSER
Nevertheless, there is a general awareness that in a household
where domestic violence is reported against one member of the
family, there is a distinct likelihood of other family members
also being victims. Enquiry may reveal the possibility of the
Moorov doctrine applying. Medical records can often back up
complaints of the injuries. De recenti statements and statements
made in front of the perpetrator and not denied by him should be
noted. A chat to neighbours and friends may reveal a source of
corroboration. The law recognises that some forms of violence
are difficult to corroborate and distress itself can in certain
circumstances provide some corroboration and therefore a careful
note of this should be kept.
RETRACTION
The
procurator fiscal, in marking a case, brings to the task not
only his knowledge of the law, but his experience of
prosecution, (which grows and evolves as his length of service
grows and evolves); his knowledge of the courts and presiding
sheriffs, and the shared experience of his colleagues.
Unfortunately, this experience might not always have the
positive effect that many of you in the audience might hope for
- because that experience is one of retraction by the
victims of domestic violence. I will share wish you one
spectacular such experience - STORY.
Every
fiscal will have at least one such story and all of us will be
able to tell you about the countless times that women have
either written to us or come to see us in our offices asking -
begging us to discontinue a prosecution - sometimes on the very
morning when we are marking the custody case and they are still
sporting the black eyes and bruises of the previous evening!
Sometimes, when we appear unsympathetic to their entreaties they
end up threatening us if we insist on continuing with the
prosecution. My concern, generally voiced, is that I am fearful
that at some future time I will see them on the mortuary slab!
I agree with
the police wholeheartedly, that a clear message must be sent to
BOTH parties - that domestic violence is unacceptable. I
would agree that the fact that an accused person is charged -
should make the message clear and I would like to think that the
message from the Procurator Fiscal Service is the same - that if
there is a sufficiency of evidence - a prosecution will
occur. I would only be persuaded to discontinue such a
prosecution where there was clear evidence that:
a. it
was a first offence and that the conduct was "out of character"
andb. there was no serious injuryc. that the parties concerned
were taking steps to ensure that the incident did not reoccur
and
d. an
understanding that if the perpetrator re-offends I will conjoin
the first charge and the latest charge on the complaint.
EXAMPLE
- common law charge, sword of Damocles - old charge and new
charge would be taken together ensuring that the court would be
made fully aware of all the circumstances.
Time
limits what I can say. Do not for one moment, however, think
that the Procurator Fiscal Service is unaware of the huge
problems that face a victim of domestic violence nor of the
complicated processes and emotions involved in retraction. These
problems will be fully spoken to by other speakers here today
and are acknowledged by us. I simply seek to reassure you that
we are anxious to secure successful prosecutions against
perpetrators of domestic violence. We too, feel exasperated,
defeated and helpless when such a person is acquitted,
especially when it is perfectly obvious that the incident did
happen but that the victim is for reasons which are sometimes
obvious and sometimes not, retracting her original truthful
statement.
The
literature generally available today, speaks of the need for a
change of attitude and the need for education to bring about
this change. I agree. Some people draw the analogy with the
changes in attitude to drunk driving. While supporting the idea
that such a change is necessary, I am sceptical that it can
happen in the same way and as speedily. Indeed, I feel that it
is almost dangerous to attempt to draw comparisons. The proof of
a charge of drunk driving relies on independent witnesses.
The offence can only occur in public and is acknowledged
as concerning people in all walks and classes of life.
The circumstances of the offence are not generally
surrounded by the same mesh of complicated emotional issues.
It is not publicly perceived as a crime that affects the lower
classes only.
I
believe that attitudes will only change if the youth of today
are taught at home, at school and via the media that this sort
of behaviour is unacceptable. This lesson must also be taught to
perpetrators in imaginative programmes that bring home to the
offender the reality of the consequences of his actions - both
actual and peripheral - that is to say to his partner but also
to any children of the partnership, and where this fails by
punishment. The sincerity of society must be put to the test and
reflected in obvious and real support to victims of domestic
crime in positive witness support schemes so that taken together
we:
"create
a safe environment for women at home and in society by
eliminating all forms of violence which are a violation of human
rights, and we empower these victims to challenge such abuse".
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