Domestic abuse cases have long presented prosecutors with a particular challenge, namely, the prevalence of unwilling complainants – those who are not prepared to give evidence against their alleged abuser in court. Prosecutors have a range of powers at their disposal in such cases, including the ability to summon a witness (that is, force them to attend court), and to apply to treat them as ‘hostile’ (that is, to effectively cross-examine them if they appear uncooperative on the witness stand). However, the advent of police officers using body-worn cameras to record police call-outs has enhanced prosecutors’ access to an alternative possible course of action: not calling the complainant to give evidence at all.
The extent to which it is appropriate for prosecutors to simply exclude a reluctant complainant from proceedings, and instead rely on their recorded initial comments to the police, was the topic of a recent appeal in the case of former footballer Joey Barton in DPP v Joseph Barton [2024] EWHC 1350 (Admin). Mr Barton’s wife had called 999, stating that her husband had hit her. Police attended and she provided initial accounts at the scene, recorded on police body-worn video, which also showed a lump on her head. However, after that initial account, she gave no support to the investigation or prosecution, refusing to provide a witness statement. Instead, she wrote letters to the police and Crown Prosecution Service saying that she had been drinking heavily on the night police attended, did not believe what she told them was accurate, and that she believed that her injury had not in fact been caused by Mr Barton.
The prosecution proceeded to trial, the sole evidence being the 999 call and video footage; the prosecution made no attempt to get Mrs Barton to court as a witness. The defence complaint was effectively that the prosecution had taken a tactical course. By relying on camera footage, the usual evidential foundation for a criminal prosecution – where a complainant must give evidence and be cross-examined in court about the alleged crime, thus allowing the tribunal of fact to assess their credibility – had been side-stepped. While the first instance judge agreed with the defence, the High Court did not, finding that rather than an abuse of process, the prosecution’s decision not to call Mrs Barton was ‘a legitimate exercise of the prosecution’s well-established discretion to choose which witnesses it calls’. Barton denied the allegations. He now faces a second trial on the same charges.
But why was it proper for the prosecution to decline to call Mrs Barton? The answer lies in the fundamental principle as to prosecution duties regarding witnesses in R v Russell-Jones [1995] 1 Cr. App. R. 538: ‘The prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, the prosecutor regards a witness’s evidence as unworthy of belief.’ Mrs Barton’s evidence, the prosecution claimed, was incapable of belief; thus, they were not obliged to call her.
What, however, does ‘incapable of belief’ really mean in relation to domestic abuse allegations? The answer often appears to amount to little more than the complainant’s retraction and refusal to give evidence to support what was said when police were first called. This appears to have been the case in Barton. The judgment deals with this factual finding briefly, simply noting that the prosecution has wide discretion in deciding whether a witness is capable of belief.
The prosecution should, of course, exercise its discretion over which witnesses to call in the interests of justice. Arguably, this might require that a witness be treated as incapable of belief only if there is some objective reason to consider the change from their initial account unreliable. However, if, as seems to be the position in Barton, the complainant states both that she was inebriated when police attended (although it is not clear if this was obvious from the footage itself) and unlikely to have given a reliable account, and has an alternative explanation for injuries, it is not clear why it is in the interests of justice for the prosecution to conclude that she is incapable of belief. Rather, it suggests that retraction is being equated with incapability of belief.
The court recognised that the Barton case relating to a domestic abuse allegation was relevant to its decision-making (on the related but separate question of the admissibility of the 999 call/video footage as hearsay): ‘It is not uncommon in [domestic abuse] cases for there to be sufficient evidence to prosecute the alleged perpetrator of the abuse even where the complainant does not… support the prosecution. In our opinion, in such cases, the public interest may often demand the use of res gestae evidence, particularly recorded evidence, regardless of the cooperation of the complainant.’ This decision therefore exemplifies the general trend towards treating domestic abuse cases differently from other criminal allegations. Certainly, were this, for example, a public order allegation and a complainant retracted, it seems unlikely that the prosecution would have taken the same course.
Where this is all determined by prosecutorial discretion rather than, say, legislation confirming that a different evidential approach should be taken in domestic abuse cases, it is not clear that the approach taken in every case is fair to either defendant or complainant. Meanwhile, for those who call the police after a domestic incident, the message from the courts is that anything said in those first minutes will be used to pursue criminal prosecution, regardless of what is said thereafter.
Maia Cohen-Lask is a partner at Corker Binning, London
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