6 Investigation, prosecution, procedural
law and protective measures
Immediate response, prevention
and protection (Article 50)
168. Article 50 of the Istanbul Convention requires
law enforcement agencies to respond promptly and appropriately
to all forms of violence and to offer immediate protection to
victims. This means that the response of the police and other
agencies must be adequate to the task.
Article 50Immediate response, prevention and protection
1 Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims.
2 Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies engage promptly and appropriately in the prevention and protection against all forms of violence covered by the scope of this Convention, including the employment of preventive operational measures and the collection of evidence.
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HOW WELL IS THE UK FULFILLING THE POSITIVE OBLIGATIONS
UNDER THE ISTANBUL CONVENTION?
169. We heard evidence that the police are not responding promptly
and appropriately to allegations of violence against women and
girls. In March 2014, the report from Her Majesty's Inspectorate
of Constabulary (HMIC) report Everyone's business: Improving
the police response to domestic abuse said: "Domestic
abuse is a priority on paper but, in the majority of forces, not
in practice [
] This stated intent is not translating into
operational reality in most forces".[161]
The report also said: "Our force inspections showed that
the quality of the initial 'golden hour' investigation differs
widely across forces and is often of an entirely unacceptable
standard. Just as a first response officer's attitude to the victim
can make a difference, the initial investigation at the scene,
is critical to a successful prosecution."
170. In addition, HMIC's report said that victims
felt more satisfied if the police responded quickly. The report
also said however:
If the perpetrator had left the home victims
told us that on occasions officers could take some time (possibly
hours) to arrive. The victims we spoke to were often very upset
and fearful that the perpetrator might return while waiting for
a responding officer. Where it is not possible to dispatch resources
immediately it is important to remember the impact this may have
on the victim. Just because the perpetrator has left the scene,
those working in the control room should not automatically assume
that the incident does not require an immediate response. Victims
felt they were not always believed, and particular concern was
drawn to the quality of initial investigation undertaken by responding
officers when called to a scene.[162]
171. HMIC's report also highlighted the problems
with specialised units:
We found similar areas of concern about the effectiveness
of specialist units in many forces. In some forces we were extremely
concerned to find a very high level of risk often characterised
by:
specialist units not being staffed or resourced
to the level originally intended. These units are often under-resourced
due to high levels of vacancies, maternity leave or long term
absences. This can result in a backlog of work with no-one reviewing
risk assessments or safety plan actions for several days and no
action being taken on the high risk cases referred to the unit;
significant levels of stress being experienced
by individuals within these units. Staff (often of a relatively
low rank) may be carrying unacceptable workloads with high levels
of responsibility. In one force, just one police constable had
responsibility for reviewing all high-risk cases;
in some forces those working in specialists
roles receive no additional training. Our survey of domestic abuse
practitioners suggested that increased training in the dynamics
of domestic abuse is a priority even for specialist staff[163]
172. Justice for Women said: "Social beliefs
and preconceptions about survivors of domestic and sexual violence
too often result in investigating officers failing to properly
conduct investigations into complaints of male violence. This
is particularly true when women fail to present as a paradigm
'victim', such as when they have used drugs or alcohol, when they
have previously consented to sexual activity with their attacker".[164]
173. Andrew Cooke QPM, National Policing Lead at
the Association of Chief Police Officers (ACPO), told us that:
"The College of Policing launched a new Public Protection
Learning Programme in February of this year which includes a specific
domestic abuse module. The programme is incorporated within initial
officer training and detective training." He did, however,
acknowledge: "At present guidance is primarily aimed at dedicated
specialists and, whilst new training programmes will deliver comprehensive
training to new recruits and new detectives, many established
front line officers still require training."[165]
174. Sandra Horley CBE, Chief Executive of Refuge,
said that the main problem the police face is volume, along with
a lack of prioritisation of the issue politically and organisationally
by the police.[166]
Rachel Horman said "police are still using family members
to interpret, which is very dangerous, because they are likely
to be the perpetrator."[167]
This is in contradiction to Article 56 (1)(h) (Measures of
Protection) of the Istanbul Convention.
175. We believe that the evidence we received
during this inquiry demonstrates a lack of cultural literacy amongst
some frontline police officers in responding to domestic violence
cases. This is one of the areas where guidance is good yet practice
and delivery of training is not. Chief Constables need to do more
to educate frontline staff and training needs to include all types
of abuse, including financial or coercive control. Chief Constables
should also urgently address concerns that specialised units are
not adequately resourced.
Risk assessment and risk management
(Article 51)
176. Article 51 requires that the UK takes any necessary
legislative or other steps to ensure that an assessment of lethality
risk is carried out by all authorities in order to manage the
risk and provide co-ordinated safety and support if necessary.
Article 51Risk assessment and risk management
1 Parties shall take the necessary legislative or other measures to ensure that an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence is carried out by all relevant authorities in order to manage the risk and if necessary to provide co-ordinated safety and support.
2 Parties shall take the necessary legislative or other measures to ensure that the assessment referred to in paragraph 1 duly takes into account, at all stages of the investigation and application of protective measures, the fact that perpetrators of acts of violence covered by the scope of this Convention possess or have access to firearms.
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HOW WELL IS THE UK FULFILLING THE POSITIVE OBLIGATIONS
UNDER THE ISTANBUL CONVENTION?
177. Witnesses criticised the response of police forces for not
responding properly, not carrying out proper risk assessments,
and as such held the police responsible for instances in which
women were killed or seriously injured by their partners.[168]
Sandra Horley CBE said there were numerous failings in IT systems,
frequent failures to arrest the perpetrator and failures in risk
assessment.[169] Police
forces have been criticised for their lack of risk assessment
and response in some high profile cases where a victim has died.[170]
178. Overall, witnesses argued that law and policy
is mainly good. Practice on the ground, however, is not. The response
of the police to deal with these crimes was seen to be inconsistent
across forces and is dependent on the leadership within local
police. Zoë Billingham, HM Inspector of Constabulary Eastern
Region, said: "risk assessment requires urgent action [
]
Poor training and lack of understanding on elements of coercive
controlling behaviour is a primary cause of poor risk assessment."[171]
HMIC concluded "a fundamental overhaul of the approach to
domestic abuse training is necessary".
179. We note the on-going the case of Michael v The
Chief Constable of South Wales police regarding alleged negligence
under Article 2 of the European Convention of Human Rights against
the two police forces involved, in which the issue is: "Whether
it is arguable that the police were liable in negligence and/or
in relation to article 2 of the European Convention on Human Rights
in respect of Miss Michael's death following an alleged delayed
response to her 999 call".[172]
We also note the recent change in case law, DSD v Commissioner
of Police for the Metropolis, in which the high court ruled that
the police have a legal duty to properly investigate rape and
serious allegations under article 3 of the Human Rights Act.[173]
180. In contrast to this picture of criticism, Andrew
Cooke QPM, National Policing Lead at the Association of Chief
Police Officers (ACPO), said: "when victims are properly
identified as at high risk, there are effective multi-agency arrangements
to jointly assess risk and effectively safeguard victims".[174]
To improve identification of high risk women by frontline officers,
he said: "The College [of Policing] aim to develop a best
practice risk tool for the service as soon as possible. In the
meantime, work is continuing to improve the application and use
of current tools". He also said "In addition, work is
ongoing to develop best practice in initial investigation, risk
assessment and victim safety planning. The College of Policing
have developed new Authorised Professional Practice which is due
out for consultation later this month."
181. The Home Secretary described HMIC's report as
"depressing reading"[175]
and the Government's action plan included an action to: "ensure
the recommendations from the HMIC review of the police response
to domestic violence are effectively implemented." The Minister
for Crime Prevention outlined the Home Office's response to the
report in supplementary evidence:
the Home Secretary has established the National
Oversight Group, the purpose of which is to ensure the recommendations
are implemented. The Home Secretary has written to all Chief Constables
and Police and Crime Commissioners making it clear that every
police force must have an action plan in place. Every force has
now submitted an action plan. These plans are currently being
reviewed by HMIC. We are encouraged that HMIC's Annual Assessment
of Policing in England and Wales, published on 27 November, found
that in relation to domestic violence and abuse, forces are now
working on improvements. In some forces commendable pace and commitment
to make a difference has been found.
But there is more to do and the national oversight
group remains focused on overseeing delivery against the recommendations
to drive a culture change in the police response. The HMIC Report
identifies a series of tangible steps that can support such a
culture change, including prioritising and valuing domestic abuse
through the force's performance management framework, selection
and promotion processes in force, reward and recognition policies,
and including successful attainment of professional standards
in domestic abuse in threshold tests which police have to pass
to progress up their pay scales. It is delivery against these
recommendations, working through the College of Policing, the
National Policing Lead and Chief Constables, in partnership with
the women's sector, which will support and encourage compliance
with policies on violence against women.[176]
182. Immediate response and risk assessment and
management are the responsibilities of the Chief Constables. We
look forward to the publication of a best practice toolkit. Recent
developments in case-law suggest that the courts are increasingly
willing to award compensation for serious harm where police investigations
have been deficient. In view of these legal developments,
claims against the police for compensation for negligence might
be more likely to succeed in the Courts if the police's response
to requests to deal with an allegation of domestic violence, rape
or other serious allegations of violence against women does not
sufficiently improve.
Investigations and evidence (Article
54)
183. Article 54 of the Istanbul Convention requires
that evidence relating to sexual history or conduct of the victim
shall only be permitted when it is relevant and necessary. In
the UK a 'rape shield law' has been in place since 2000, introduced
by section 41 of the Youth Justice and Criminal Evidence Act 1999.[177]
Article 54Investigations and evidence
Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.
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HOW WELL IS THE UK FULFILLING THE POSITIVE OBLIGATIONS
UNDER THE ISTANBUL CONVENTION?
184. Vera Baird QC told the Committee that "We introduced
Section 41 of the Youth, Justice and Criminal Evidence in 1999
[which protects complainants in proceedings involving sexual offences
by restricting evidence or questions about their previous sexual
history, subject to exceptions], and there was a piece of academic
work done in 2006 on 2003 data that said, frankly, it has made
no difference. Since then, there has been a key piece of work
done with the judiciary and I hope things are improving".[178]
She also said that in "Northumbria, we have established a
group of court observers. We are going to watch every rape case
in Newcastle Crown Court for the next six months and judge, according
to a matrix, whether they are being conducted fairly, so I might
have some more information, more up to date, presently".[179]
185. Sheridan Greenland OBE, Executive Director of
the Judicial College, told us of the training provided to Judges
to ensure that evidence relating sexual history and conduct of
the victim is only permitted when it is relevant and necessary:
Judges as professional lawyers are expected to
keep themselves up to date with the law and any jurisdictional
procedural rules. The Judicial College assists with this by issuing
jurisdictional e-letters which provide updates on law and procedure.
Training includes a reflection of the relevant legislation, and
a look at any case law and Court of Appeal judgements as necessary
at seminars. This would be the case for evidence relating to sexual
history.[180]
186. She also told us: "There is no monitoring
of court cases by the Judicial College as it is not part of our
training remit. Where there is dispute about the evidence allowed
in court this would usually be dealt with on appeal."[181]
187. We recommend that judicial training for judges
who participate in violence against women cases should include
the application of Section 41 of the Youth Justice and Criminal
Evidence Act 1999, which protects complainants in proceedings
involving sexual offences by restricting evidence or questions
about their previous sexual history, subject to exceptions.
Ex parte and ex officio proceedings
(Article 55)
188. Under Article 55 of the Istanbul Convention,
investigations or prosecutions should not be wholly dependent
on reports or complaints by victims, and prosecutions may proceed
even if the victims withdraw their statement. This is known as
an evidence-led prosecution. Section 5 of the CPS Policy for Prosecuting
Cases of Domestic Violence outlines what happens when the victim
withdraws support for the prosecution or no longer wishes to give
evidence.[182]
Article 55Ex parte and ex officio proceedings
1 Parties shall ensure that investigations into or prosecution of offences established in accordance with Articles 35, 36, 37, 38 and 39 of this Convention shall not be wholly dependant upon a report or complaint filed by a victim if the offence was committed in whole or in part on its territory, and that the proceedings may continue even if the victim withdraws her or his statement or complaint.
2 Parties shall take the necessary legislative or other measures to ensure, in accordance with the conditions provided for by their internal law, the possibility for governmental and non-governmental organisations and domestic violence counsellors to assist and/or support victims, at their request, during investigations and judicial proceedings concerning the offences established in accordance with this Convention.
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HOW WELL IS THE UK FULFILLING THE POSITIVE OBLIGATIONS
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189. It is clear that, to ensure evidence-led prosecutions can
take place, sufficient evidence other than the victim's statement
is neededfor example, contemporary photographic evidence
taken by a third party. This is a requirement under the Istanbul
Convention. HMIC's Report Everyone's business, however,
found: "in a file review of 600 domestic abuse cases of actual
bodily harm (where the victim will have a visible injury), HMIC
found that photographs of the injury were taken in only half of
the cases, and in three cases out of ten the officer's statement
lacked important details such as a description of the scene or
the injuries of the victims".[183]
The BBC reported that one victim of domestic abuse said the manner
of the first police officer sent to interview her after she was
abducted and assaulted by her former partner was "very inappropriate".
"I had to suggest to him, 'Don't you think you should take
some pictures?'".[184]
190. HMIC's report, Everyone's business, said:
There is extensive national police policy and
practice on how police officers should carry out core policing
tasks including crime investigation. It is simply not good enough
that officers are not carrying out the tasks of evidence-gathering
in cases of domestic violence in a professional and consistent
way. It is a core part of officer competence.[185]
191. The Police and Crime Commissioner for Northumbria
said that some police were using cameras attached to their clothes
when responding to a call out for domestic violence, to ensure
that all evidence was captured. She said a pilot in Essex showed
that, when body-worn cameras were used, charges were more widely
brought without the victim's support.[186]
Other witnesses, however, said that the officers did not always
turn the cameras on and that officers were not disciplined for
failing to do so.[187]
192. Alison Saunders CB, Director of Public Prosecutions,
said that the Crown Prosecution Service would continue a prosecution
even if a victim withdrew their statement "if there was suitable
other evidence available to warrant proceeding, and if consideration
was given to the impact on pursuing the case on the victim"[188].
193. Failure of the police competently to carry
out the initial response following a report of violence against
women and girls means that the Crown Prosecution Service could
be left unable to proceed with evidence-led prosecutions, as required
by the Istanbul Convention. We recommend that, if the pilot proves
successful, the use of body-worn video cameras by frontline officers
in responding to domestic violence cases should quickly be extended
to all police forces with national guidance on their appropriate
use.
161 Everyone's business: Improving the police response
to domestic abuse: https://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/2014/04/improving-the-police-response-to-domestic-abuse.pdf
[accessed 2 January 2015] Back
162
Everyone's business: Improving the police response to domestic
abuse: https://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/2014/04/improving-the-police-response-to-domestic-abuse.pdf
[accessed 2 January 2015] Back
163
Ibid. Back
164
Written evidence from Justice for Women (VAW0062) Back
165
Written correspondence from Andrew Cooke (VAWG (14-15) 023) Back
166
Q 66 Back
167
Q 76 Back
168
Written evidence from Rights of Women (VAW0022) Back
169
Q 67 Back
170
Including the cases of Cassandra Hasanovic (Kent Police, Sussex
Police and CPS) and Christine Chambers and her son (Essex police). Back
171
Written correspondence from Zoë Billingham (VAWG (14-15)
026) Back
172
R v Michael: https://www.supremecourt.uk/cases/uksc-2013-0043.html
[accessed 4 January 2015] Back
173
DSD v Commissioner of Police for the Metropolis [2014]:
http://www.bailii.org/ew/cases/EWHC/QB/2014/436.html [accessed
22 January 2015] Back
174
Written correspondence from Andrew Cooke (VAWG (14-15) 023) Back
175
https://www.gov.uk/government/news/home-secretary-leads-action-on-police-response-to-domestic-violence-and-abuse
[accessed 2 January 2015] Back
176
Supplementary written evidence from the Rt Hon Lynne Featherstone
MP (VAWG (14-15) 034) Back
177
In R v A (2001), a House of Lords judgment used s. 3 of the Human
Rights Act to "read in" to the UK legislation (which
the House of Lords judged to go too far in excluding potentially
relevant material) a qualification that such evidence was admissible
in so far as it was necessary for the defendant to get a fair
trial-in other words leaving it up to the trial judge to decide
on the facts of a particular case whether certain evidence should
be allowed in or certain questioning allowed. Back
178
Q 73 Back
179
Ibid. Back
180
Written correspondence from Sheridan Greenland OBE (VAWG (14-15)
033) Back
181
Ibid. Back
182
CPS Policy for Prosecuting Cases of Domestic Violence: http://www.cps.gov.uk/publications/prosecution/domestic/domv.html#a05
[accessed 2 January 2015] Back
183
Everyone's business: Improving the police response to domestic
abuse: https://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/2014/04/improving-the-police-response-to-domestic-abuse.pdf
[accessed 2 January 2015] Back
184
Police fail domestic abuse victims-HMIC Report: http://www.bbc.co.uk/news/uk-26758565
[accessed 2 January 2015] Back
185
Everyone's business: Improving the police response to domestic
abuse: https://www.justiceinspectorates.gov.uk/hmic/wp-content/uploads/2014/04/improving-the-police-response-to-domestic-abuse.pdf
[accessed 2 January 2015] Back
186
Q 70 Back
187
Q 70 (Sandra Horley CBE) Back
188
Written correspondence from Alison Saunders CB (VAWG (14-15) 022)
Back
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