Wednesday, December 9, 2009

Presumption of innocence

If your partner phones the police after an argument, a record is made on the police computer for such matters (known as a CRIS report). "Domestic", so the boys in blue have to turn up and talk to people. Some forces run a "zero-tolerance" policy, which means that someone HAS to be removed from the property there and then (usually the person complained about, usually arrested).

Let's say this happens more than once. Totally unnecessary calls, on every occasion.

If an allegation of assault is made, and a statement is prepared, a charge is likely. Indeed, CPS policy is that where the evidence exists, it is automatically in the public interest to charge. So off we go to court. Your partner, realising that it's all now a bit serious, writes to the CPS, and makes a formal withdrawal statement.

If they're summonsed to attend, but don't, a witness warrant may be issued. This isn't particularly common, so let's leave that aside.

What happens?

The prosecutor offers no evidence, and the charge against you is dismissed. Phew. You get to keep your job, you'll be able to keep paying the mortgage.

Charge dismissed, certainly, but there's more. A restraining order.

The courts now have the power to impose a restraining order upon conviction for any offence. Previously, this power was restricted to offences under the Protection from Harassment Act 1997, and lasted up to five years.

Now, it's any offence. Not only that, but the court can also impose a restraining order upon acquittal where it is satisfied on the balance of probabilities that a restraining order is required to protect the person named.

So, you could end up with a court order telling you not to contact your partner, directly or indirectly. For a significant period of time. Breach of which could result in a custodial sentence measured in years, not months.

I can see the utility of the court being able to grant a restraining order upon acquittal, but it is entirely wrong in principle.

This is the beginning of a slippery slope. We already have conditional cautions, so why not have conditional cautions with restraining orders attached? Why not just text them to people?

"U hv restrng ordr, dnt contct wife or up2 two yrs insde"

And yes, I'm fully aware that (for now) a restraining order is a court order, and requires an appearance before the court.


  1. Sometimes you sit through a trial and the CPS or defence is poor in it's presenation or perhaps the witnesses are not as complete as they could be. So a not guilty verdict is passed as "Beyond all reasonable doubt" has not been established. However on hearing the facts the CPS still has concerns about the "victims" safety and an application for this order is made seconds after the not guilty verdict is announced. Why isn't this an appropriate time to address the concerns raised and if the Bench feels appropriate, issue a restraining order. This applies to trials that perhaps are not on the surface of it, an assault but where evidence of concern arises for the witness concerned.

  2. "You get to keep your job, you'll be able to keep paying the mortgage."

    Not necessarily, there's a good chance you'll lose your job if you need a to have a CRB check.

  3. How many people arrested in these circumstances have, or have ever had, a job?

    If two people can't get on and keep smashing each other’s stuff up, waking up the neighbours and hitting each other, then they should clearly not be together (but I luvs ‘im).

    ***If their behaviour did not effect any one else then it would be up to them to sort it out***

    However if, as is often the case, their lack of self control costs £1000 a time from the public purse, and makes the neighbour's life hell, then it is right and proper that the state should step in and separates them. Rather that than let them continue for years, produce miserable criminal children and then finish it off with a knife sticking in one of them.

  4. I'm afraid we are half way down the slippery slope already. It used to be a fundemental of our system that you are and remain innocent unless or until you either plead guilty or are found guilty after trial- nothing less would surfice to dislodge that presumption.

    These days however unevidenced allegations, inuendo or plain simple gossip have the potential to get you an entry on some system that may cast some doubt on your innocence and cause you to loose a job, be banned form getting a job or arrested because its the third or fourth time your estranged patner(male or female ) has rang the cops to say you've raised your voice against them ( the good old domestic violence). So the chances are you will be banged up as the cops will arrest you, unlawfully deny you bail and you'll get before a court where the CPS will be terrified there will be a complaint if they do not pill out all the stops to get you remanded.

    It's a sad mess- justice disappearing down the plug-hole as no-one has the balls to stand up to the totall errosion of cicil liberty.

    Please don't think I'm aa bleeding heart. I've spent 20 yrs mainly prosecuting and want villains banged up- but only when they have committed a crime, not when someone things they have but CAN NOT PROVE IT!!!

  5. I am slightly bemused at to what an 'acquittal' means in this context.

    If the prosecution offers no evidence, than there really isn't even a trial - how can this count as an 'acquittal' for the purposes of making such an order?

    And if there's no evidence before the court, how can there possibly be enough evidence to make an order anyway?

  6. Why isn't this an appropriate time to address the concerns raised and if the Bench feels appropriate, issue a restraining order. The bench HAVE considered the matter, and acquitted. The power exists in civil courts to go and apply for a restraining order, but in this sort of situation, the woman just doesn't care. Why should an order restricting someone's behaviour be made?

    gyg3s -- thanks for those links, and the links within the links -- this is the same problem. No evidence, just suspicion, and that's enough. Terrifying. I may do a post on the new CRB check system in due course.

    Martin -- it is right and proper that the state should step in and separates them? Not a chance. If people want to argue then fine. It's part of life. We shouldn't seek to regulate people's private lives unless absolutely necessary. And for those cases, people are convicted, or a civil order can be sought.

    anonymous / bleeding heart -- I entirely agree.

    Phisheep -- "acquittal" is being interpreted locally as "not a conviction", i.e. including offering no evidence! A matter for the Divisonal Court in due course?

  7. I am in two minds about this.

    I don't really have a problem in principle with the criminal courts exercising some civil jurisdiction when it is relevant to cases before them - on the whole it would go to save time and money in the court system and for whoever it is seeking the order.

    But there are huge practical problems. Not least of them is that the parties are different - the prosecutor can hardly take on the role as advocate for the complainant, the rules of evidence and procedure are different - different enough that there is a risk of inappropriate evidence getting to the wrong people, and the costs are different - the cost of applying for such an order must act as some sort of deterrent to fake claims but why bother with that when the police/prosecution bear the burden?

    As a minimum safeguard, this should be allowed after acquittal only after there has been a trial with a case to answer.

    But that is a bare minimum.

  8. "Why isn't this an appropriate time to address the concerns raised and if the Bench feels appropriate, issue a restraining order. The bench HAVE considered the matter, and acquitted".

    Not if the case before them was for something entirely different. I don't have a problem with this but take on board your points, which I have heard echoed by other magistrates.

  9. I think the idea of restraining orders being given where charges were dismissed as absolutely outrageous. It will lead to a rise in false allegations of domestic violence to remove the man (and it is always the man) to be removed from the home and allow the woman to take advantage of that situation. This already happens in the USA under the VAWA laws, and make no mistake, the same will happen in the UK.

    And what if it is just a spat between husband and wife? What a way to wreck a family. Some forces operate a zero tolerance policy and remove... well it's going to be the man no matter what. Why? Because the police are taught that men are violent, women are not. Of course that's a nonsense, just walk down any high street at night and you can see that for yourself. Study after study finds women as violent as men. But that isn't taught, so what we have are people dealing with domestic violence who really have no understanding of domestic violence. As a result, their mishandling will result in the destruction of even more families. If the American experience is anything to go by, it will lead to an increase, not a decrease of violence.

    The best way forward would be to allow either to apply for a restraining order with just cause, not issue one as a matter of course.

  10. An acquittal is where a verdict of not guilty has been entered by the bench or jury (as appropriate). Where the Crown offer no evidence, a Judge or lay bench enter a not guilty verdict on the record.

    Where the Divisional Court may be interested is the situation in which the Crown discontinue proceedings before a plea is entered.

  11. Why is it not right that the state step in and seperate two people who are causing significant problems for themselves and others? This is exactly what I pay the police and courts to do.

    Anonymous, I feel certain that a police officer has a much better idea about domestic violence, having seen hundreds of instances of it, and know very well that women can be violent as well as men, again having seen hundreds of brawls in and out of houses. The person taken away from a domestic is usualy whoever won that days scrap, ie not the one with the bruises. Next week it might well be the other party. How you come to the rediculous conclution that police officers, the only members of the criminal justice system who actualy witness the carnage of a domestic, know nothing about them i will never know.

  12. @Martin

    The argument isn't that the police seperate two in a domestic, it is the restraining order made DESPITE the fact the complaint is a) withdrawn, b) the possibility that the allegation may be false, and c) by reason of b), be completely innocent of anything other than having raised his voice.

    As stated, forces operate a zero tolerance policy and that means the removal of the person complained about. Now, in your vast experience, who usually makes the complaint? You know full well it will be the woman. And why? It is often her way of getting even knowing (especially if there are children present) she will be untouched.

    Just as an example, a couple have a spat, she wants to drive of with the child, he says no and refuses to let her leave with the child. She calls the police, no bruises, not even any physical contact. Who will you arrest? Or alternatively, she strikes out leaving him with marks and he does not retaliate. But then she claims she fears for her life and her child (leaving out the bloody obvious that it is his child too), who will you arrest?

    In both cases you will arrest the man. Why? There is no downside. If you didn't, and on some rare instance she was injured, think of all the bad press. Conversely if she injures the child "she has mental problems and our deepest sympathy." And this will work in exactly the same way for restraining orders. A family wrecked before the altar of political correctness.

    Now if they really wanted to stop this, then it would be much better to force both to attend anger management courses - except you wont find any for women. Take a look, all women are treated as victim perpetrators, not as being inherently violent. So assertation that women can be as violent as men just doesn't gel because I know, you know and anyone who has ever researched the problem knows, all services are fed the lie that a woman is only violent in self defense.

    But, keeping on the subject of restraining orders. How do you think you would react being arrested having done nothing wrong, then given a restraining order just on the chance you may have done something wrong and then find you are unable to return home to collect your belongings, no access to any savings accounts, nowhere to live, possibly no access to your computor if your livlihood depends on it nad be deprived of seeing your children? Off hand, I'd say you'd be hopping mad, the more so if you knew everything was trumped up. And that is why I think the level of violence will increase, not decrease because as more and more men are criminalised, it will draw in more and more men who will not control their anger in the face of such injustice.

    Sad to say, I don't think IPV will ever be eradicated. There are some that seem to be just addicted to violence. Maybe it's a learned habit or what they like. But until there is help for couples in that situation, it wont change. Meanwhile, when all is needed is a cooling off period, restraining orders are too drastic and are the beginning of a very slippery slope.

  13. Anonymous,

    You are quite wrong to assume that the man would be arrested if he was the one with injuries. This is not the case at all. As I have said, if one party has injuries and the other does not then the one without will be arrested (or 'asked' to attend the police station to be interviewed). If both have injuries and both are making allegations then both will be arrested. I have spent enough time sat with unfortunate children waiting for social services to find somewhere for them to know assure you this is the case.

    "I know, you know and anyone who has ever researched the problem knows, all services are fed the lie that a woman is only violent in self defence."

    Utter tosh. Who exactly do you think is "feeding" us this information? I and every officer worth the name have experience of violence which most do not, and use this when making our judgements regarding arrests or otherwise. An arrest will only be made if there is an offence to arrest for, or, in the officer's judgment the situation is too volatile for the two to be under the same roof for the time being. Forces do not have a 'zero tolerance' policy’, they have 'positive action' policies, which in no way means that an arrest has to be made. Nine times out of ten, if no allegations are made, or if the allegations seem malicious, one party will be asked to leave for the night or for the next few hours, and l that party will be driven by police to mother's house or similar. If they refuse an arrest to prevent "a breach of the Queen's
    peace" will be made, usually resulting in instant release upon arrival at the station, and the next morning at the worst. No charge can be made after an arrest for breach of the peace. If there are no offences to question one party about then any arrest would be unlawful.

    To 'The Anonymous Prosecutor' - are the injunctions we are discussing here any different to those that can be applied for at a County Court for a fee? The only difference seems to be that they would be free when made by Mags. Also, are they of a limited time, say two weeks or so? Would evidence such as previous convictions where the applicant was the victim, or police logs, comments on past behaviour and risk assessments be used? A full DV report from police would aid Mags in deciding who is really at risk and who is making it all up.

  14. @ Martin

    "Who exactly do you think is "feeding" us this information?"

    Professor Marianne Hester cites "women were much more likely to use a weapon,
    although this was at times in order to stop further violence from their

    Pretty much sums it up don't you think? Even though it is completely untrue. Her report can be found at;

    An interesting but very biased read which influences every decision made in IPV situations.

    Read the article more closely and note "the court can also impose a restraining order upon acquittal where it is satisfied on the balance of probabilities that a restraining order is required to protect the person named."

    It is clearly stated that some forces do indeed operate a zero tolerance policy and someone must be removed from the property and is usually arrested. Acquittal isn't the end, it can mean a restraining order instead of the common sense approach as you said, to remove someone for a cooling down period.

  15. I will give the report a look,

    "An interesting but very biased read which influences every decision made in IPV situations"

    Erm, how does that follow? It has not influenced my decision making.

  16. these injunctions (restraining orders) are normally for at least 12 months and can be indefinite

    2 weeks it aint

  17. Dave,

    I understand that the restraining orders obtained at a County Court are usually for 12 months and can be longer, and they are in my experience wonderful bits of kit if they come with a power of arrest. Normally the irritation of being arrested and remanded over a weekend three or four times is enough to stop harassment etc in cases where the actions of Mags. have failed utterly. I was enquiring if the injunctions being discussed in the post are the same beast as these County Court injunctions?

  18. @Martin

    Do read that report, it would be interesting to get your take on it.

    Meanwhile, read this;

    It certainly seems to me a direction to make arrests. If I remember correctly, there was another police force following the same course, London I think, except they were arresting everyone. Not too sure for how long though, I don't think it would be possible to keep up with. Please also note, the mention of female domestic violence is made but described as being in the minority. Does this fit in with your experience?

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