This guidance has been updated to reflect changes brought in by the Domestic Abuse Act 2021, (DA Act). 

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Introduction

This prosecution guidance sets out how prosecutors should apply the Code for Crown Prosecutors (the Code) when considering any offences which fall within the definition of Domestic Abuse (DA) as outlined in the section of this guidance titled ‘Domestic Abuse Definition’ and regardless of the age of those involved. All DA cases should be identified on the CPS Case Management System (CMS) by applying the ‘Domestic Violence’ flag. Prosecutors dealing with DA cases should have completed the DA training and ensure they understand the impacts and dynamics of how abuse may be perpetrated.

DA cases are amongst the highest priority work dealt with in the criminal justice system. The safety of adult and child victims is imperative when prosecuting cases of DA.

There is no specific offence of ‘domestic abuse’. It is a general term describing a range of behaviour and can be applied to a number of offences. The DA Act introduced a statutory definition of domestic abuse which is set out below in the section Domestic Abuse Definition. The domestic nature of the offending is an aggravating factor because of the abuse of trust involved. Victims will know and often live with, or have lived with, the offender and there may be a continuing threat to the victim's safety. In some cases, there is a threat to their life or the lives of others around them.

DA can inflict lasting trauma on victims and their extended families, especially child victims and young people who may not see the abuse, but may be aware of it, or hear it occurring. Individuals experiencing DA will not always be aware that what is happening to them is abusive behaviour.

In many cases a suspect’s abuse of a victim becomes more frequent and more serious the longer it continues, and, in some circumstances, it can result in death. DA cases require sensitive and careful handling taking account of the nature of the offending behaviour; the relationship between the victim and offender; the victim’s family circumstances; cultural or religious beliefs and other factors such as apostasy, sexual orientation and/or gender identity, mental capacity or physical disability, or poor health. People of all ethnicities, genders, sexualities, ages, disabilities, immigration status, religions or beliefs, and socio-economic backgrounds can be victims or offenders of DA.

Support and safety needs for victims should be identified from the outset and continually considered throughout the life of a case. Improving a victim's safety is key. It may help to raise their confidence in the criminal justice system and facilitate their participation in the investigation and prosecution process.

Prosecutors should work closely with the police to ensure that accurate and up to date information is provided to the victim throughout the case, particularly about special measures and other support that may be available, Regular liaison with Independent Domestic Violence Advisers [IDVAs] (where in place), Young People's Violence Advisers (YPVAs), or other support services (including from specialist organisations), Witness Care Units (WCU), and voluntary sector support organisations, is recommended to ensure the victim's safety and support needs are properly understood and addressed. Local systems and protocols, specifically addressing communications processes or pathways between the CPS, WCU, and support organisations should be kept up to date. All pathways should be set up to provide a two-fold function, with the ability to address safety, progress of a case and its outcomes in a speedy and efficient manner, as well as providing victims with accurate information on the criminal justice process and the roles of the relevant agencies.

Terminology

Language and terminology are important in the criminal justice system and it is acknowledged that a range of terms are used by different organisations.

In all CPS prosecution guidance, the term ‘victim’ encompasses other terms such as ‘complainant(s)’, and ‘survivor(s)’ and is used to denote:

• a person who has made an allegation,
• a person who has experienced harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence; or
• a close relative (or a nominated family spokesperson) of a person whose death was directly caused by a criminal offence.

All CPS prosecution guidance uses the term “suspect” to describe a person who is under consideration as the subject of formal criminal proceedings; “defendant” to describe a person who has been charged or summonsed; “offender” to describe a person who has admitted guilt as to the commission of an offence, or who has been found guilty in a court of law.

The use of any wording does not confer any finding or judgement on the allegations that have been made. All allegations will be prosecuted impartially in accordance with the Code for Crown Prosecutors.

Violence Against Women and Girls strategy (VAWG)

The VAWG Strategy provides an overarching framework for crimes identified as being primarily, but not exclusively, committed by men, against women and girls within the context of power and control. Though the majority of reported victims covered by VAWG offences are women, the CPS recognises that some offenders will be women, non-binary or identify in a different way and some victims will be men, non-binary or identify in a different way.

All references in this guidance are gender neutral and are applied to all suspects and victims of crime irrespective of gender, or sexual orientation, in accordance with the Code.

DA prosecutions should be addressed within the overall framework of violence against women and girls and human rights.

Domestic Abuse definition

The DA Act aims to raise awareness about the devastating impact of DA on victims and their families and to further improve the effectiveness of the justice system in providing protection for victims of DA and bringing offenders to justice.

It introduced a statutory definition to ensure that DA is properly understood, viewed as unacceptable and actively challenged across statutory agencies and in public attitudes.

The DA Act does not create a specific criminal offence of DA. DA can fall under a range of offences which are considered in the section of this guidance titled ‘offences available to prosecutors'. The DA Act sets out who can be a victim of DA behaviours and establishes how victims need to be connected to the offender. It also makes clear that children are deemed to be victims of DA if they see, hear, or experience the effects of abuse and they are related to the victim or offender.

The relationship between the victim and perpetrator under the statutory definition

The definition of DA is in two parts, which can be found at section 1 DA Act. The first part deals with the relationship between the victim and the suspect: the victim and suspect must both be aged 16 or over and they must be “personally connected”.

Prosecutors should continue to flag and apply this guidance to all cases that meet the definition of DA regardless of the age of the victim and suspect.

In what circumstances can people be personally connected in the DA Act?

Section 2 of the DA Act sets out how people can be personally connected, and it ensures that different types of relationships are captured, including ex-partners and family members.

Section 2: Definition of “personally connected”

1. Two people are “personally connected” if any of the following applies;
   • they are, or have been, married to each other;
   • they are, or have been, civil partners of each other;
   • they have agreed to marry one another (whether or not the agreement has been terminated);
   • they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
   • they are, or have been, in an intimate personal relationship with each other;
   • they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (2));
   • they are relatives.
2. For the purposes of subsection (1)(f) a person has a parental relationship in relation to a child if:
   • the person is a parent of the child, or
   • the person has parental responsibility for the child.

The DA Act uses the same definition of ‘relative’ as Section 63 of the Family Law Act 1996. This is wider than the previous definition and means:

• The father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson, or granddaughter of that person or of that person’s spouse, former spouse, civil partner, or former civil partner; or
• The brother, sister, uncle, aunt, niece, nephew or first cousin (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person’s spouse, former spouse, civil partner, or former civil partner.

There is no requirement in the DA Act for the victim and suspect to be co-habiting.

What is abusive behaviour in the DA Act?

Section 1(3) DA Act sets out what constitutes abusive behaviour, listing broad categories to capture the different types of abuse. These include:

• physical or sexual abuse
• violent or threatening behaviour
• controlling or coercive behaviour
• economic abuse (see subsection (4))
• psychological, emotional or other abuse

The DA Act also clarifies that it does not matter whether the behaviour consists of a single incident or a course of conduct.

In terms of economic abuse, it also clarifies that this can include:

‘any behaviour that has a substantial adverse effect on B’s ability to:

• acquire, use, or maintain money or other property, or
• obtain goods or services.’

Offences available to prosecutors

Prosecutors should consider each case based on the facts presented to them and determine the appropriate offence(s) to charge on a case by case basis. Prosecutors should ensure they consider the wider context of any incidents reported by victims and ensure that any other relevant potential charge(s) or ongoing investigations are considered. Prosecutors should always consider if a pattern of behaviour demonstrates controlling or coercive behaviour. Prosecutors may need to seek further information or evidence to ensure the most appropriate charges are brought. Most incidents reported to the police are not isolated and it is well documented that DA usually escalates over time.

Prosecutors are reminded that there are no specific offences of DA, and any number of offences could fall within the definition. Prosecutors should consider this as overarching guidance regarding DA but must refer to individual prosecution guidance regarding specific offence(s) being considered.

Prosecutors should be aware that on 29 April 2021 section 71 DA Act came into force which states that a person may not consent to the infliction of serious harm for the purposes of obtaining sexual gratification, and by extension, is unable to consent to their own death. Further guidance can be found in the Rape and Sexual Offences prosecution guidance at the section titled 'consent to serious harm for sexual gratification'.

Prosecutors should also note that the Online Safety Act 2023 (OSA 2023) introduced a series of new communications offences relevant to DA. These offences came into force on 31 January 2024. Section 180(1) prohibits sending false communication intended to cause non-trivial harm and section 182(1) prohibits sending threatening communication which conveys death or serious harm.

Additionally, section 189 OSA 2023 repealed the offence of ‘revenge porn’ under section 33 of the Criminal Justice and Courts Act 2015 (CJCA 2015) and replaced it with section 66B under the Sexual Offences Act 2003 (SOA 2003). ‘Revenge porn’ can now be prosecuted under four distinct offences.

Further guidance on the above can be found in the Communications Offences guidance at the section titled ‘Online Safety Act 2023 Offences’.

DA offences will be prosecuted under the specific offences committed but it is important that consideration is given to all the circumstances when assessing which offences are the most appropriate. Prosecutors should refer to paragraph 6 of the Code for further guidance on selection of charges. Below is a list of links to relevant prosecution guidance for potential offences that prosecutors should consider. Please note this is not an exhaustive list and other offence(s) may be appropriate in the circumstances of the case:

• Controlling or Coercive behaviour prosecution guidance. Prosecutors should note that section 68 DA Act expanded the definition of “personally connected” to reflect that there is no longer a requirement for the victim and suspect to live together. It includes post-separation and familial abuse where the parties do not live together.
• Communications Offences prosecution guidance. On 31 January 2024 section 189 OSA 2023 inserted four distinct ‘revenge porn’ offences into section 66B SOA 2003, including threats to disclose intimate content and content that ‘appears’ to show someone in an intimate state. Prosecutors should refer to this guidance for further information, and for guidance on the new threatening and false communications offences.
• Offences Against the Person - Charging Standard prosecution guidance
• Rape and Sexual Offences prosecution guidance
• Stalking or Harassment prosecution guidance
• So-Called Honour-Based Abuse and Forced Marriage prosecution guidance
• Child Abuse (non-sexual) prosecution guidance
• Offensive Weapons, Knives, Bladed and Pointed Articles prosecution guidance
• Non-fatal strangulation and non-fatal suffocation prosecution guidance
• Prosecutors are also reminded to consider any relevant breach offences, such as: breach of a restraining order, breach of a non-molestation order and breach of a stalking protection order. Restraining orders prosecution guidance (prosecutors should refer to the breach of restraining orders section)
• Modern Slavery, Human Trafficking and Smuggling prosecution guidance
• Female Genital Mutilation prosecution guidance

Statutory time limits for offences of common assault or battery which amount to DA

Prosecutors should have regard to section 39A Criminal Justice Act 1988 (CJA 1988), inserted by section 49 Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022). This section applies to any offences of common assault or battery which amount to domestic abuse, as defined in section 1 Domestic Abuse Act 2021 and applies to offences committed on or after 28 June 2022, it is not retrospective, (section 39A(7) CJA 1988).

When a victim has made a statement or a video recorded interview (VRI) with the view to its possible admission as evidence in proceedings and it has been provided to a police officer or person authorised by the police, (section 39A(2) and (3) CJA 1988). The proceedings can be commenced when both the following apply:

• at any time within 2 years from the date of the offence to which the proceedings relate, and
• within six months from the first date the victim made a statement or was interviewed about the incident, (section 39A(4) CJA 1988).

This has effect despite the limitations in section 127 Magistrates' Court Act 1980, which states that summary only proceedings must be commenced within 6 months of the date of the offence was committed, (section 39A(5) CJA 1988).

Extra-territorial jurisdiction

On 29 June 2021, sections 72, 74(1) & (2), and Parts 1 & 2 of Schedule 3 of the DA Act were implemented. These provide extraterritorial jurisdiction of the criminal courts in England, Wales, Scotland, and Northern Ireland. Where appropriate, UK nationals and those habitually resident in the UK who commit certain violent and sexual offences outside the UK they may be brought to trial here. The offences to which this applies are:

• Murder
• Manslaughter
• An offence under section18, 20 or 47 of the Offences Against the Person Act 1861
• An offence under section 23 or 24 if the Offences Against the Person Act 1861
• An offence under section 1 of the Infant Life (Preservation) Act 1929
• An offence under section 4 and 4A of the Protection from Harassment Act 1997
• Certain offences under the Sexual Offences Act 2003 (for further guidance prosecutors should refer to the Rape and Sexual Offences prosecution guidance)
• An offence under section 76 Serious Crime Act 2015

Prosecutors should refer to the Jurisdiction prosecution guidance for further guidance in relation to extra-territorial jurisdiction and how to prosecute these cases.

Case building and approach to prosecuting DA cases

It is important that evidence is gathered to build a robust prosecution case which takes a suspect-centric approach and is not focused solely on the evidence of the victim. The stronger the overall case, the less likely it is that it will be contested or, if it is, that the prosecution will need to call upon the victim to give evidence. The starting point should be to build cases in which the prosecution does not need to rely on the victim. However, prosecutors should ensure that the views of the victim are balanced with this approach, and they are not overlooked during proceedings.

Early Advice (EA)

Investigators should consider seeking Early Advice in sensitive, or complex DA cases. Cases involving a death, rape, or other serious sexual offence should always be considered for early referral, particularly once a suspect has been identified and it appears that continuing the investigation will provide evidence upon which a charging decision may be made. Further guidance on Early Advice can be found in the Director's Guidance on Charging, 6th edition.

Suspect centric approach

An effective strategy for investigating and prosecuting DA offences requires focus on the actions of, and tactics used, by suspects. Prosecutors must encourage investigators to take a suspect-centric approach to case building which involves looking closely at the actions of the suspect before, during and after the alleged offence. DA incidents often take place in private, and the victim may be the only witness. Prosecutors should advise investigators to pursue reasonable lines of enquiry which may include an analysis of the suspect’s digital communications, analysis of their behaviour from CCTV or statements from third parties who may have knowledge of the parties or had disclosures made to them. Prosecutors should look at the wider pattern of behaviours and not focus solely on the incident before them. This should include considering any bad character evidence, including any previous incidents against others, patterns of behaviour such as: previous call outs, reports by the same victim, previous DVPOs/DVPNs and previous acquittals. Whether the victim is dependent on the suspect for finances, care, provision of medication or immigration security. This approach to case building is aimed at building the strongest case possible whilst ensuring that the investigation is fair.

Prosecutors should consult the Vulnerable Victims Toolkit which highlights common types of offender tactics and behaviours.

Factors to consider when making charging decisions

Charging decisions in DA cases must be made by the CPS and not the police. The police may make the decision to offer a simple caution for a DA case if it involves a summary or either way offence, but they must refer any indictable only offence to the CPS for further advice. The police can take no further action without referring a case to the CPS, but only if they decide that the evidential test is not met. The police are not authorised to take no further action on public interest grounds (paragraph 4.4 Director’s Guidance on Charging 6th edition).

Prosecutors should work closely with the police from the outset to ensure effective gathering and collation of evidence to build strong prosecution cases:

• all cases should be built by ensuring the investigator follows all reasonable lines of enquiry including those which do not rely upon evidence solely from the victim
• police and prosecutors should use the Joint Evidence Checklist as a matter of routine to ensure that all evidential opportunities have been taken
• effective information sharing with other agencies and support organisations may assist prosecutors and police in case building
• police and prosecutors need to work closely to ensure that a victim’s safety and welfare needs are addressed through receipt of informed risk assessments and risk identification
• bail and remand should be considered in respect of the specific facts of the case
• in all cases prosecutors should consider not only the offence presented to them by police but the background and any other potential offences, particularly where there are a number of allegations which, together, might amount to a more serious offence. For example: ABH and controlling or coercive behaviour
• Police and prosecutors should ensure the views of the victim are obtained to understand if they are supportive of a prosecution and wish to take part in proceedings

Joint working by police and prosecutors is required to a build a case and prosecutors should always advise the police where it is considered that there are outstanding reasonable lines of enquiry. Clear action plans setting out the additional lines of enquiry, with timescales, should be provided to the police.

The Attorney General's Disclosure Guidelines and the CPIA Code of Practice make it clear that a fair investigation involves following all reasonable lines of enquiry, whether they point towards or away from the suspect. What is ‘reasonable’ will depend on the context of the case. A fair investigation does not mean an endless investigation: investigators and disclosure officers must give thought to defining, and thereby limiting the scope of their investigations to what is reasonable, seeking the guidance of the prosecutor where appropriate. Prosecutors should consider what the identified or likely issues in the case are and should develop a case strategy based on those issues. This will inform the reasonable lines of enquiry to be pursued.

Further guidance can be found in the Attorney General's Disclosure Guidelines.

When charging decisions are being considered victims should be kept appraised of the progress of the case by the police and should be notified when a final decision regarding charge has been made, in accordance with Right 6 in the Victim’s Code.

Self-defence and counter allegations

Prosecutors may often be presented with conflicting accounts of the incident, with each party claiming to be the victim. The suspect may make a counter-allegation of abuse, or argue that they have acted in self-defence, making it difficult to identify and distinguish between the primary victim and primary suspect.

In cases where a counter allegation has been made, police officers should conduct an immediate further investigation at the scene (or as soon as is practicable) to attempt to establish the primary suspect and to assess whether the primary victim may have been justified in using a reasonable level of force to defend themself or another person, such as a child. Police and prosecutors should be alert that some counter allegations may be made to further the abuse perpetrated on the primary victim. A thorough investigation should be conducted into the background of the relationship between the victim and alleged suspect to ensure that the full context of the incident is understood. Prosecutors should consider each case on the circumstances and facts known and ensure all reasonable lines of inquiry are followed including information that maybe available from specialist support organisations such as from IDVAs is considered before determining whether a prosecution is appropriate by applying the Code.

The police should record the following information:

• The nature of the relationship between the victim and suspect;
• Whether either party, or both, are involved in other proceedings, such as civil proceedings/orders, or family proceedings;
• The comparative severity of any injuries inflicted by the parties;
• Any information regarding controlling or coercive behaviour (including emotional or economic abuse);
• Whether either party has made threats of future harm to others or themselves (including children, other family members, or others living in the same household);
• Any prior history of abuse by either party;
• Any previous counter allegations by either party and the results of those allegations; and,
• Whether either party acted defensively to protect themselves or a third party from injury.

First response officers will be able to record the behaviour of the parties or note any other information which may assist in building the case. It is also possible that officers attending the scene may be wearing body-worn cameras which might capture vital evidence. Where possible, and when relevant, prosecutors should request to view this footage prior to their charging decision.

The victim in the reported incident may also have acted in retaliation, which may add to the complexity of the report. If there is uncertainty prosecutors should request further information from the police to help clarify the situation as soon as possible. This will help prosecutors assess circumstances where, for example, a primary victim of abuse has retaliated against a suspect who has been abusing them for many years, as well as other scenarios, such as victims of alleged reciprocal abuse.

Police and prosecutors should understand the vulnerability of victims and the impact that control, coercion, and psychological abuse may have on the individual. There may be some circumstances in which the suspect will accuse the victim of having mental health difficulties and use this to suggest that the allegation reported did not occur. In this situation, prosecutors should carefully review all known information about the suspect and victim. It may be a reasonable line of inquiry to obtain information about a victim’s mental health from an independent health care professional such as a GP or a mental health team. Each case should be considered on its own facts. Victims should not be subjected to any misconceptions or assumptions.

When reviewing DA cases prosecutors should consider any previous convictions or cautions that the suspect has on their police national computer (PNC) record. Prosecutors should pay particular attention to any previous convictions or intelligence which are DA related involving the same victim or another victim. Where these exist, the prosecutor must seek further information from the police about the facts and circumstances of each offence. The prosecutor should then analyse each previous offence and record in their charging decision any impact this has on their decision to charge. If charged, the rationale for applying to adduce bad character and its admissibility should be recorded.

As well as previous convictions/cautions prosecutors should consider any background information and previous misconduct, such as police call outs, allegations not previously proceeded or acquittals, or relevant proceedings in the civil or family courts and review any relevant material to determine if this should be subject to a bad character application. Prosecutors should consider if this information falls within any of the gateways under s101 CJA 2003, such as important explanatory evidence or to correct a false impression given.

Prosecutors should consider whether an offence(s) that has not been prosecuted previously has sufficient nexus to be joined with the latest indictment or charge(s), having in mind any statutory time limits on prosecutions. Where a summary only offence has been committed, any charge(s) may be commenced at any time within 2 years from the date of the offence to which proceedings related and within six months from the first date the victim made a statement or was interviewed about the incident. This time limit may prevent some previous cases being joined with those involving later offences or victim(s). Prosecutors should also consider if previous incidents assist in demonstrating a pattern of behaviour that supports additional charges such as controlling or coercive behaviour. Prosecutors should also consider whether a judge is likely to rule that fairness requires separate trials (severance).

Prosecutors should note that counter allegations may be used as the basis of bad character applications against the victim (section 100 of the CJA 2003 allows for the bad character of any witness to be admitted, subject to certain conditions). A thorough investigation of such claims should take place to ensure that factually incorrect or misleading information is not put before the court.

Prosecutors should refer to the prosecution guidance on Bad Character for further guidance regarding admissibility and how to make an application/respond to an application.

Previous domestic abuse incidents and serial offenders

Proactive enquiries into the suspect’s previous criminal behaviour, or intelligence reports relating to DA incidents (even if they concern a different victim) should be obtained.

Additionally, prosecutors may find it useful to enquire of the police whether any information has been made available about the suspect’s behaviour through the police-led Domestic Violence Disclosure Scheme that includes two routes for disclosing information:

• “Right to Ask” is triggered by a member of the public or professionals who have concerns applying to the police for a disclosure; and
• “Right to Know” is triggered by the police making a proactive decision to disclose information to protect a potential victim.

Joint Evidence Checklist

The Joint Evidence Checklist (see Annex A) must be supplied by the police to the CPS in every DA case submitted for a charging decision. It is designed to provide a series of prompts to police and prosecutors to assist in building DA cases based on evidence other than that of the victim, to ensure a full history of offending behaviour has been captured and to ensure consideration is given to support mechanisms to maximise the safety of victims. This is not an exhaustive list, and any other relevant evidence or information should be considered by the police and prosecutors. Prosecutors should prompt the police where it is considered that further supporting evidence may be useful to build the file.

Risk assessments and risk indication checklists

Risk assessments are usually conducted by the police upon notification of an incident. Risk assessments will vary between forces but the most common used are DASH (Domestic Abuse Stalking and Honour based violence) and DARA (Domestic Abuse Risk Assessment) risk assessments. There are a number of other risk identification checklists and tools available for adults, and Young People's risk assessment tools which help identify the risk to a victim.

Multi-Agency Risk Assessment Conferences (MARAC) may also take place. These are meetings for victims of DA who have been identified by local partner agencies as high risk. The MARAC is an opportunity for partners to share information which might identify further risk to the victim and develop a multi-agency action plan to address those risks.

Prosecutors should request from the police a copy of the risk assessment for each case as a matter of routine.

The safety of the adult and child victim, and other dependents or family members should be considered throughout a prosecution case and updated risk assessments requested where appropriate.

Bail and Remand

Prosecutors should read this section in conjunction with prosecution guidance on Bail.

The safety of the adult and child victim and other dependents should be considered carefully when deciding whether to oppose bail. Prosecutors should ensure that the police (and through the police, IDVAs, YPVAs and other specialist support organisations) have gathered relevant information, including the victim's views. This will help to inform conditions to be applied when the defence make bail representations and will assist in opposing bail when a remand in custody in appropriate. This will include the following:

• the victim's whereabouts or living arrangements - whether the victim is in a refuge or other safe location, the details must not be disclosed as part of the bail arrangements or any protective order;
• fears the victim may have regarding the defendant’s behaviour;
• in familial abuse cases - the victim may fear the defendant’s contact with other family members and the subsequent repercussions. Prosecutors may need to consider this, particularly in cases of so called honour-based abuse;
• the victim's fear of further offences or repeat offending by the defendant;
• information regarding any child victim or any other dependents (e.g. care arrangements for children, other family members, and/or any risk of abuse);
• areas/locations the victim frequently visits or attends (the school attended by child victims or dependents, any social clubs that the child attends and social clubs the victim may attend);
• the impact on the victim if the victim and defendant are at school/college/university together, or work in the same organisation;
• methods of contact between the victim and defendant (including, but not limited to mobiles, emails or social media and networking sites, as well as face to face);
• whether any civil orders are in force and details of those orders;
• whether any civil or family proceedings are ongoing and the stage they have reached;
• the proximity of any of the defendant’s relatives, to the victim and the likelihood the offender may want to visit them;
• whether the defendant is a carer for the victim;
• whether the defendant may already be on bail for another offence;
• the defendant’s history of complying with bail in the current case proceedings; and,
• the defendant’s history of complying with bail in other proceedings, especially where the offence in question, was one of domestic abuse.

Prosecutors will need to think carefully about applications for bail where the victim and defendant will be unable to avoid each other, or it would be very difficult for them to do so such as in smaller communities. Whilst it is for the court to make the decision, prosecutors will have a duty to consider how the victim can be kept safe in the specific circumstances that apply to them in relation to the defendant.

Discussions with the Youth Offending Team (YOT) may also be necessary to ensure that properly informed decisions are made regarding defendants under 18 years. Prosecutors should refer to the prosecution guidance on Children as Suspects and Defendants for bail issues relating to youth defendants.

Prosecutors should ensure that any bail conditions requested prioritise the safety of the adult and child victim and any dependents. The victim should retain as much freedom of movement as possible by curbing the ability of the defendant to approach or intimidate them, such as at home, on the way to work, school or college, regular social venues, extended family homes, when taking children to school, or when socialising with friends. Due care will be required in relation to the different dynamics of the abuse, such as whether the abuse is familial, or between former or current intimate partners, and the nature of safety needs required by the victim.

It is the defendant who is subject to bail conditions, not the victim. The court should make clear to defendants that any breaches will be taken very seriously. Arrangements regarding child contact will be managed by the family court and generally will not be a matter considered within a bail hearing.

Any changes to the bail conditions or custody status of a defendant must be communicated to victims immediately, either by the police or by the CPS in accordance with local arrangements. Victims and witnesses may also be updated by the WCU, or through the IDVA, YPVA or other relevant support organisation involved in supporting them.

If a defendant breaches their bail conditions, the police will arrest them and the court may remand them in custody, or may readmit the defendant with the same, or amended bail conditions. It is important the breach is carefully considered, as new offences may also have been committed in addition to the conditions being breached; prosecutors must review all new offences to assess whether a prosecution should follow.

Where a condition has been imposed for there to be no contact with the victim, it does not matter whether the victim has agreed contact, or if the victim-initiated contact with the defendant. It is the defendant who is subject to the bail conditions and is responsible for compliance until those conditions have been lifted.

In some cases, the victim may have purposely contacted the defendant to reconcile the relationship, manage child contact, or manage other care arrangements with other dependents or family members. In such cases, prosecutors will need to consider how a breach should be effectively dealt with. It is important that wherever possible such matters are brought to the attention of the prosecutor at the outset to ensure that appropriate conditions are applied for, which are specific and suitable for the individuals concerned and designed to keep the adult and child victim and any other dependents safe.

When an application to vary bail is made, prosecutors should insist the defence gives proper notice so that enquiries can be made of the victim to seek their views and check whether any court orders already exist or are pending.

Where the proposed variation concerns contact with a child, prosecutors should note that such contact might provide the defendant with opportunities to intimidate the child and/or victim which, in the worst cases, could lead to murder or suicide. Where the victim is pregnant, prosecutors should be aware that applications by the defendant to be present at medical appointments (e.g. foetal scans) may also provide opportunities for intimidation and violence. Both issues will need to be properly highlighted to ensure that any variations avoid providing the defendant with an opportunity to exploit their relationship with the victim.

Similarly, where cases involve non-intimate partner abuse, it is possible that defendants will exploit situations, or seize on opportunities, enabling them to perpetrate further abuse, such as through the involvement of other family members, or community contacts. Specific and thorough consideration should be given in cases involving controlling or coercive behaviour. Prosecutors should be alert to this and ensure that they prioritise the victim's safety.

Evidence led prosecutions

The prosecution strategy should, from the outset, consider the possibility of proceeding without the victim's support and this should be clearly recorded within the prosecutor’s review. Prosecutors should rarely need to apply to the court for further time to investigate this possibility. Prosecutors should always consider whether there is any risk to the safety of the victim in the case proceeding without their support; a victim should not be placed at increased risk through this course of action. Where there is an evidence led prosecution, victims must still be kept informed of progress. Prosecutors should consider the following in the order outlined:

1. Using evidence other than that of the victim - the prosecutor should consider the potential evidence available that could be adduced. The following should be considered but is not an exhaustive list:
   • First contact with the police such as 999 calls or the attending officers’ statements, which may cover the demeanour of the victim and the suspect and show the state of the scene
   • Body worn footage – this could cover the demeanour of the victim or suspect (if they remain present at the time the footage was obtained), a first account, capture any injuries and may have significant comments
   • Injuries which could include photos or the comments of what the attending officers have seen and any medical evidence available
   • Independent witness statements
   • CCTV – may capture the incident or demeanour of the parties
   • Suspect’s interview – including any inconsistencies with significant statements
   • House to house enquiries
   • Telephone – messaging and social media
   • Expert evidence
2. Res gestae – A statement is admissible as evidence of any matter stated if:
   • the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded, or
   • the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
   • the statement relates to a physical sensation or a mental state (such as intention or emotion).

See below for further details on how to adduce evidence under the res gestae principle.

1. Making an application under section 116(2)(e) of the Criminal Justice Act 2003 (CJA 2003) - consideration should be given to applying to admit a victim's statement as hearsay under section 116(2)(e) of the CJA 2003, if there is evidence that the victim is in fear The court will assess various factors under s116(4) CJA 2003 such as:
   • the statement’s contents
   • any risk that its admission or exclusion will result in unfairness to any party to the proceedings and in particular to how difficult it will be to challenge a statement if the relevant person does not give oral evidence
   • any special measures for the giving of evidence by the fearful witness; and
   • any other relevant circumstances.

The prosecutor will need to show there is a causal link between the fear and the failure or refusal to give evidence. How this is proved will depend on the history and circumstances of the particular case (R v Riat [2013] 1 ALL ER 349). Further guidance can be found in the Hearsay prosecution guidance;

1. Making an application under section 114(1)(d) of the CJA 2003 - where there is other evidence, consideration should be given to applying to adduce hearsay if it would be in the interests of justice to do so (prosecutors should refer to the prosecution guidance on Hearsay). For example, any third-party witness statements from neighbours or support representatives assisting the victim.

Prosecutors must re-review every case where a victim subsequently withdraws or refuses to participate in a prosecution. Prosecutors should determine if a case could be prosecuted without the victim being required to attend court to give evidence. If the evidential stage of the full code test is met, they should then apply the principles for public interest considerations in the Code.

Adducing evidence under the res gestae Principle

Before considering adducing evidence by way of res gestae prosecutors should ensure that proper inquiries have been made to determine why a victim has not/will not appear at court, in accordance with the principles set out in Wills v CPS [2016] EWHC 3779 (Admin).

Where the prosecutor concludes that the material is res gestae, they should indicate to the court that the prosecution position is that the evidence is admissible, and they intend to adduce it under the res gestae principle. The prosecutor should remind the court (if necessary) that the requirement for a written application under Crim PR 20.2 does not apply and oral notice can be given of the intention to adduce the evidence as res gestae (Crim PR 20.5(1)(b)).

Prosecutors should summarise the important details of the evidence, identifying the relevant content for example within the body worn footage or the 999 call.

The court should be referred to s118(4) CJA 2003 which preserves the rules of law relating to res gestae:

Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if:

1. The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
2. The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
3. The statement relates to a physical sensation or a mental state (such as intention or emotion)

Prosecutors should explain which subsection above they are relying upon and how the facts of the case mean it applies. The Court should also be referred to relevant case law, such as:

R v Andrews [1987] 84 Cr App R 382 in which the House of Lords said that the trial judge must ask whether the possibility of concoction or distortion can be disregarded. In answering that question the judge must have regard to:

• how startling or dramatic the event was
• how spontaneous the statement was
• whether the triggering event was still operative when the statement was made
• Any special features relevant to the possibility of distortion or concoction (e.g. evidence of a motive to fabricate false evidence); and
• Any special features relevant to the possibility of error (e.g. an identification made by a witness with particularly poor eyesight).

In Barnaby v DPP [2015] EWHC 232 (Admin) the victim’s account was provided to the police on a 999 call. The victim then spoke to the police 6 minutes later after the incident and refused to make a statement. The evidence consisted of a transcript of the 999 calls and the account given by the victim when she saw the police officers at the premises shortly after the alleged strangulation. It was held the court was entitled to dismiss the possibility of concoction or distortion of the victim’s evidence: the 999 telephone calls were made almost immediately after the alleged assault which “would have dominated the thoughts of the victim and her utterances would have been instinctive and spontaneous” and the police arrived within six minutes of the last phone call and observed the victim in an agitated state with visible signs of strangulation on her neck.

Notwithstanding the victim’s availability to give evidence, the decision not to call her was a sensible recognition of the potentially dangerous position in which she had been placed.

While there had been a breach of the Crown’s obligations to serve the evidence in a timely manner, the court concluded that it was entitled to decide that the provenance of the emergency 999 calls had been established beyond doubt.

If the evidence was properly admissible under the res gestae principle, the Crown was not obliged instead to rely on section 114(1)(d) in order to trigger consideration of some or all of the factors set out in section 114(2)(a)-(i) CJA 2003.

In DC and R (Ibrahim) v CPS [2016] EWHC 1750 (Admin) which involved a 999 call where there was a delay of 1.5 hours between the incident and the 999-call made. It was confirmed that the lapse of time between the incident and reporting was a factor to be considered but not the sole factor.

In Morgan v DPP [2016] EWHC 3414 (Admin) the CPS had applied for a witness summons for the victim but despite this the victim did not attend court. It was held that the victim’s 999 call about 1 hour later and the body worn footage was correctly admitted under res gestae.

Prosecutors can also remind the court that there are counter balancing measures in s124 CJA 2003. These permit the defence to adduce evidence relevant to the absent witness’s credibility of a matter which would have been put in cross-examination or to prove an inconsistent statement.

For further guidance regarding introducing res gestae prosecutors should refer to the Hearsay prosecution guidance.

Victim withdrawals and withdrawal statements

In some circumstances a victim may withdraw their support for a prosecution. This may occur at any stage of the proceedings both pre and post charge.

The police should provide a statement for the prosecutor following contact with the victim, to explain the reasons that a retraction of the allegation/withdrawal of support has been made. Without this there cannot be an informed decision about the next steps to be taken.

Where a victim's account of the allegation in their withdrawal statement is not the same, or is inconsistent with their earlier statement, there is a possibility that the victim may have been pressurised into changing their account. In these circumstances, the police should be asked to investigate changes and consider investigating the situation.

Prosecutors should consider particularly:

• the nature of the original allegation (if not fully covered in a previous statement);
• the victim's reasons for withdrawing support or retracting the allegation and whether any support can be provided to them to allay their concerns;
• details of those with whom the victim has discussed the case - particularly anyone who has advised them (for example: a community member or mediator) and obtain their details; and,
• whether any civil, immigration or family proceedings have been, or are likely to be, commenced which may have impacted on the victim's decision.

Withdrawal statements should be accompanied by a background report containing:

• the officer's views on the case, including the veracity of the statement, any suspicions of witness intimidation or pressure (if not already included in the withdrawal statement), and a general assessment of the reasons given by the victim;
• the officer's views on how the case should be dealt with, including proceeding against the victim's wishes;
• how the victim might react to being compelled to give evidence;
• details of any identified risks to the safety of the adult and child victim any other dependents or any other person;
• details of the support available to the victim prior to the allegation being retracted or support withdrawn and whether this was a reason for the change in position (for example, access to an IDVA, YPVA, or other support organisation, or whether the offer of a special measures application was made);
• whether any support organisation assisting the adult and child victim or any other dependents has expressed a view; and,
• the likely impact on the adult and child victim, and any other dependents of proceeding or not proceeding with the case.

The police officer's report may reveal the need to consider whether further charges, for example, witness intimidation, harassment or stalking should be brought, or whether there has been a breach of the defendant’s bail conditions.

The prosecutor should carefully consider if it would be appropriate to summons a victim, which is considered in more detail below.

If the reason for the victim withdrawing is based on fear or intimidation, the investigator should provide this evidence to the prosecutor. This will allow appropriate decisions to be made about any applications under s116(2)(e) CJA 2003. Prosecutors should refer to the Hearsay prosecution guidance for further guidance.

After considering a victim's reasons for retracting their allegation or withdrawal of support, if it is deemed inappropriate to make any applications, including a witness summons, the prosecutor has a duty to review the case and determine if there remains sufficient evidence to prosecute the case. If there is no longer sufficient evidence to provide a realistic prospect of conviction, then the prosecutor must offer no evidence or discontinue the case and the rationale should be clearly recorded in the prosecutor’s review.

Witness summonsing a victim

The prosecutor should carefully consider if it would be appropriate to summons a victim taking into account the distress that could be caused to a victim in giving evidence at Court. Annex B sets out the factors that will tend to either support or not support the decision to issue a witness summons - prosecutors may find this helpful in assisting them with their decision. The risk assessment and risk indication checklists should be reviewed at this stage. A combination of factors needs to be considered, with all options balanced; a seemingly minor incident may be serious in the context of escalating abuse.

If the reason for the victim withdrawing is based on fear or intimidation, the investigator should provide this evidence to the prosecutor. This will allow appropriate decisions to be made about any applications under s116(2)(e) CJA 2003. Prosecutors should refer to the Hearsay prosecution guidance for further guidance.

After considering a victim's reasons for retracting their allegation or withdrawal of support, if it is deemed inappropriate to make any applications, including a witness summons, the prosecutor has a duty to review the case and determine if there remains sufficient evidence to prosecute the case. If there is no longer sufficient evidence to provide a realistic prospect of conviction, then the prosecutor must offer no evidence or discontinue the case and the rationale should be clearly recorded in the prosecutor’s review.

Witness summonsing children and young people

Under the provisions of section 97 of the Magistrates' Court Act 1980, applications to witness summons a child are permissible; however, special regard must be given to their welfare and safeguarding in the criminal justice system, giving effect to Article 3 of the UN Convention on the Rights of the Child. All courts must have regard to the welfare of children who appear as victims, witnesses, and defendants (section 44 of the Children and Young Persons Act 1933). Prosecutors may also find it useful to refer to R v Highbury Magistrates' Court ex. parte Deering [161 JP 138] DC where it was found that the magistrates' court had no jurisdiction to decline to issue a witness summons for a young child.

In the DA context, the issue of witness summonsing a child or young person should be considered only in very limited and exceptional cases, and prosecutors should discuss whether this is an appropriate course of action with their Deputy Chief Crown Prosecutor before making an application. Prosecutors should be aware of the distress that may be caused to a child or young person, especially where they are being compelled to give evidence in support of one parent, against the other.

Where an application is made, prosecutors should refer to the prosecution guidance on Special Measures and Safeguarding Children: Children as Victims and Witnesses for further guidance.

Annex B sets out the factors that will tend to either support or not support the decision to issue a witness summons - prosecutors may find this helpful in assisting them with their decision. The risk assessment and risk indication checklists should be reviewed at this stage. A combination of factors needs to be considered, with all options balanced; a seemingly minor incident may be serious in the context of escalating abuse.

Third party witness summons

In certain cases, it may be appropriate to apply for a witness summons for third parties who may have information integral to the prosecution case.

Third party evidence may provide vital background information about the abuse that has taken place, and may even in some circumstances, lessen the risk towards the victim from the suspect.

Prosecutors should be aware that there may also be risks to a third parties being witness summonsed. The suspect may consider stalking or harassing or intimidating a third party because of their involvement and therefore that risk must be considered when deciding whether to apply for a witness summons.

To apply for a witness summons, prosecutors should follow the guidance set out in the Disclosure Manual, at the section titled ‘obtaining access to third party material’.

Witness warrants

If a victim or witness refuses to attend court following the issue of a witness summons, prosecutors should consider whether a warrant application to the court is appropriate under section 97(3) of the Magistrates Court Act 1980.

The safety of the child and adult victim and any dependants should be considered throughout. The intention of obtaining the warrant should be to assist attendance at court. Applications for warrants should be made on a case by case basis after considering issues such as the nature of an incident (whether the attack was serious or prolonged); whether a weapon has been used; if the victim is at 'high risk’ of further abuse or injury/suffering; or there is a pattern of escalating abuse. In exceptional circumstances, a warrant can be applied for under section 97(2) of the Magistrates' Court Act 1980 without having to apply for a witness summons. This approach may be considered in situations where it is likely that the witness summons would not procure the attendance of the victim or witness in question.

Seeking a witness warrant could deter the victim from seeking help in the future, thereby jeopardising their future safety and that of any child victim or other dependants. Arresting a victim may also have the effect of 'stigmatising' them and may have a detrimental effect on the quality of evidence given. Prosecutors should therefore use this approach as a last resort and only where necessary.

Obtaining/Disclosing family court proceedings documentation

Prosecutors may need to obtain information or documents that pertain to family proceedings. This information may be crucial to the decision to charge; the nature of the charge; bail conditions; applications in respect to witnesses; and the admissibility or otherwise of bad character and hearsay evidence. The CPS may be made aware of the existence of relevant material by:

• the police who have obtained the material from the local authority or elsewhere in line with their child protection duties. The police cannot share this material with the CPS without the permission of the Family Court, but can make prosecutors aware that material exists; or,
• the local authority who may contact the prosecutor to make them aware of relevant material.

Prosecutors should ensure that the police have obtained the permission of the Family Court to use such material in prosecution proceedings. Not having permission may result in contempt of court in the Family Court. CrimPD V paragraph 17A.8 states ‘No evidence or document in the family proceedings or information about the proceedings should be disclosed into criminal proceedings without the leave of the Family Court.'

The Family Procedure Rules 2010 allow for a summary of judgement in Family Court proceedings to be disclosed to the police and CPS without the permission of the court. (Practice Direction 12G, paragraph 2.1 Family Procedure Rules).

Prosecutors should follow the Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol set up to manage linked direction hearings where the directions in concurrent criminal and Family Court proceedings can be made jointly by the same judge.

To obtain the documents, prosecutors should initially ascertain if all parties to the family court proceedings are willing to consent. If so, a consent order can be sought by writing to the court.

If these methods are not successful, then the investigator will need to make an application to the Family Court using Form C2. Forms can be obtained from the gov.uk website.

Form C2 must contain details of the named person or officer to whom release is sought and specify the purpose and use to which the material is intended to be put.

Leave should be sought, where appropriate, to disclose the material to the CPS/share with the police, to disclose the material to the criminal defence solicitors and, subject to section 98(2) of the Children Act 1989, to use the material in evidence at the criminal proceedings.

An application will be determined at a hearing at the Family Court. Police and CPS will not need to attend the hearing unless directed to do so by the Family Court. However, the prosecutor will need to prepare a position statement in advance of the hearing setting out clearly what is required and why.

In advance of receiving leave from the Family Court no material should be disclosed to the defence or third parties.

Proceedings may take place in the family court prior to criminal proceedings being instigated. If this is the case the CPS will not be a party to the proceedings but may be asked by the Local Authority to assist by providing material in the possession of the CPS. The CPS should give every assistance to the Local Authority, however, prosecutors should be aware that where disclosure is made to a local authority it is obliged to make onward disclosure to the other parties to the care proceedings. It is possible that other family members and actual or potential defendants in criminal proceedings will receive this information. In view of the sensitivities involved in requests for disclosure in care proceedings, a Senior District Crown Prosecutor or above should be consulted and approve the disclosure in advance. For further information prosecutors should refer to our prosecution guidance on Disclosure of material to third parties.

Supporting Victims

Giving evidence may be very difficult for the victim, and may cause additional challenges for them, for example, fear of reprisals; safety of their children; increased family pressures or serious financial repercussions; fear of being 'outed'; fear of a lack of support by the criminal justice system, or specialist support organisations or emotional attachment or loyalty towards the offender, leading to uncertainty about the course of action they should take.

Victims of DA are entitled to special measures to support and assist them in giving evidence at Court. Prosecutors should consider whether any particular special measures will improve the quality of the evidence given, taking into account the victim’s wishes and the ability of all parties to effectively test the evidence in court.

Available special measures should be explained to victims by the police and their preferences sought at an early stage in proceedings to ensure that appropriate support is planned for and available to the victim.

Prosecutors should refer to the Special Measures prosecution guidance and guidance issued by the Ministry of Justice in Achieving Best Evidence in Criminal Proceedings.

Section 36 Youth Justice and Criminal Evidence Act 1999 stops the defendant from personally cross-examining a victim/witness of Domestic Abuse. The DA Act 2021 prevents suspects and alleged suspects of abuse from cross-examining their victims in person (and vice versa) in family and civil proceedings in England and Wales. The court will appoint a qualified legal representative in some cases where the prohibition applies.

Section 62 DA Act came into force in part on 19 May 2022 and ensures that all DA victims are automatically eligible for special measures whenever it is alleged that behaviour falls within the DA definition. However, this does not currently apply to special measures available under sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999, (video record evidence in chief and video recorded cross-examination or re-examination). When this comes into force the guidance will be updated.

Victims of DA are entitled to receive an enhanced service under the Code of Practice for Victims of Crime. Prosecutors should refer to the Victims and Witnesses: CPS Public Policy Statement on the Delivery of Service to Victims – The Prosecutor's Pledge.

Victims may be supported by an Independent Domestic Violence Adviser (IDVA) and other support workers, who provide professional support, advice and help for victims of DA - whether the allegation is reported to the police or not. Some IDVA and other support worker services provide tailored support for children as well as minority groups. Prosecutors should work alongside IDVA’s and other support workers to support victims going through the prosecution process.

Victim Personal Statement

The police should provide the prosecutor with copies of any Victim Personal Statements (VPS) made by the victim. Victims are entitled to say whether they would like to read their VPS aloud in court or whether they would like it read for them or played, (if recorded). The VPS and information about the victim's preference should be relayed to the court. The VPS should be treated as a live document and updated throughout the journey of a case as the full psychological, emotional, and physical impacts on the victim develop and become more apparent.

A VPS gives the victim a voice in the criminal justice process, providing them with an opportunity to explain in their own words how a crime has affected them. For DA cases, a VPS may also usefully include a victim's concerns about safety, intimidation, the defendant’s bail status and future concerns for any ancillary orders.

The VPS can be an important way to empower the victim, and project the impact of abuse and the effects on the victim and family, or other vulnerable individuals within the household to the court.

Prosecutors should refer to the prosecution guidance on Victim Personal Statements for further guidance.

Acceptability of pleas

Prosecutors should refer to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise and paragraph 9 of the Code when determining acceptability of pleas.

In some cases, the defendant may offer a guilty plea to a different charge or plead guilty to some of the charges made against them, but not all.

When considering whether to accept a plea in these instances, prosecutors should discuss the situation with the victim or the victim's family where possible. The victim's or family's views (either directly, or through any support organisation working on their behalf) should be taken into account to ensure prosecutors are informed of all information before making their decision.

For cases of familial abuse, prosecutors and the police will need to take great care when seeking views of the family. In some cases, it may be entirely inappropriate to speak to some members of the family, or even affiliates of the family, given the context of the offending. Each case should be assessed on its own facts and specific circumstances.

Prosecutors should consider the following factors when deciding whether to accept a plea to a lesser offence or a plea to one or some of a number of offences in a DA case:

• whether the defendant offers a plea that is in accordance with the evidence available to the prosecution;
• whether the defendant has any previous incidents recorded against them.
• whether it would be advantageous to the adult or child victim and any dependents not to have to give evidence;
• the victim's views on the pleas offered (some victims would prefer to give evidence rather than accept a plea to a lesser offence);
• whether the plea fetters the discretion of the court in relation to sentencing;
• whether the difference between the prosecution and defence version of events is such that it would significantly affect the sentence that would be imposed (if it does, there should be a Newton Hearing to determine the facts).
• the fact that defendants will often seek to minimise the offence or mitigate their offence; and,
• whether the acceptance of plea could impact upon the ancillary orders available to the court at sentence.

Where there has been an agreed basis between prosecutors and the defence to a plea, this should be put into writing and signed by both parties.

Trial

Briefing and instructing agents and counsel

Agents and counsel must familiarise themselves with this prosecution guidance and understand their overall responsibility to ensure that victims and witnesses are appropriately informed during their time at court.

Prosecutor’s briefs to agents and counsel must clearly set out the strategy for the case, and if the case is to be prosecuted as an evidence led prosecution from the outset clear instructions should be provided regarding the evidence to be relied upon at trial.

Individuals acting on behalf of the CPS should have the victim's specific needs and concerns in relation to the case brought to their attention, as well as highlighting the support services that may be assisting the victim, such as the use of an IDVA, YPVA, interpreter or intermediary.

Agents and counsel must be made aware that decisions on acceptability of pleas, issues affecting victim and witness attendance at court (including compelling their attendance) must be referred to CPS prosecutors for authorisation before a final decision is made.

Speaking to witnesses at Court

All advocates are expected to be aware of and comply with the CPS guidance on Speaking to witnesses at Court.

Prohibition of cross examination of victims

In addition to special measures, section 36 Youth Justice and Criminal Evidence Act 1999 (YJCEA) permits the court to make an order prohibiting the defendant from personally cross-examining a victim/witness where section 34 and 35 YJCEA do not apply. Where a defendant attends court for a trial unrepresented this application should be made to protect victims.

Applications to adjourn

Having initially indicated a willingness to attend court, some victims may not attend on the day of the trial. The full reasons for non-attendance should be explored, where practicable. These reasons may be the same or similar to the reasons why victims withdraw support or retract allegations.

Victims should not be automatically dismissed as reluctant or hostile. Victims may not understand what will happen to them when the day of attending court arrives and may therefore choose to not attend due to issues such as uncertainty over the support, they may have access to if they have a specific disability. Whilst every effort should be made to identify such needs at the earliest opportunity, it is possible that such matters may only come to light on the day of the trial.

Prosecutors should establish in the first instance why a victim has not attended, and consider whether the case can proceed without them, using either other evidence, or through making an application under section 116 of the CJA 2003 to have the victim's statement admitted. See the above section on evidence led prosecutions for how to make an application.

Prosecutors may also want to consider whether it is appropriate to adjourn the case to allow for any special measures applications to be made to account for any late preferences made known by the victim. Alternatively, a prosecutor might wish to consider whether it may be possible and appropriate to seek a witness summons for the victim and make an application to adjourn the trial for this to be served. Prosecutors should refer to the section of this guidance titled ‘case building and approach to prosecuting DA cases’ for further information on seeking a witness summons.

If the victim or witness is unavailable to attend court or has not attended, and the prosecutor considers it is likely they will be available soon, where there is a genuine reason for their non-attendance supported by evidence, an application to adjourn the trial should be made following the principles under paragraph 24C.9 of the Criminal Practice Directions. The test applied includes doing justice between the parties.

Where relevant, prosecutors should refer to section 10 Magistrates' Court Act 1980 which confers a discretionary power to adjourn Magistrates’ Court cases. See also Crim PR 24.2(3).

Reluctant and hostile victims and witnesses

Victims of DA may be impacted by trauma and they may find it very difficult to take part in criminal proceedings. There will be instances where despite a victim being willing to attend court, they may be unwilling to give evidence. In such instances, the victim may be treated as a reluctant witness. In the first instance, prosecutors should seek to establish the reasons why the witness does not wish to give evidence and discuss whether an application for special measures being granted would change that position. It is possible that a victim is willing to give evidence, but once called may say they cannot recall the circumstances of the incident. In such cases, prosecutors may wish to refresh the victim's memory through verifying their statement under section 139 of the CJA 2003. Prosecutors will need to call the victim to give evidence, ask them to confirm their name and the fact that they previously made a statement. The victim should be asked to refresh their memory from the statement; this can be done at any stage during their evidence. The victim will need to give evidence that the document records their recollection of the events at the time they made it and that their recollection at the time was significantly better than now.

Some victims may have been put under duress (by the defendant, by the defendant’s family or their own family, or through community members) to say that they do not recall the facts of the incident, or they may fear the repercussions if they reveal their account at court, in which case prosecutors may want to consider whether an application should be made for their statement to be admitted under section 116 CJA 2003.

There will be some cases where a victim will claim they cannot recall the incident to be deliberately uncooperative, rather than fearful of the defendant. The victim may give evidence that directly contradicts what they have said previously in a manner that suggests the new account is fabricated. In these situations, prosecutors may want to consider applying for other previous statements made by the victim to be admitted as evidence under sections 119 and 120 of the CJA 2003.

Under section 120 CJA 2003 the previous statement of a witness/victim may be admitted as evidence of any matters where the statement was made when the matters were fresh in their memory but cannot be remembered now and cannot be reasonably expected to, of which oral evidence by the witness would be admissible.

To make an application to adduce a statement under section 120 CJA 2003, prosecutors must indicate to the court that an application will be made under section 120(4) and (7) CJA 2003 for the admission of the statement (or part of it) with reference to the section 120(7) CJA 2003 pre-conditions. These are:

• The witness claims to be the person against whom an offence has been committed,
• The offence is one to which the proceedings relate,
• The statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
• The complaint was not made because of a threat or promise, and
• Before the statement is adduced the witness gives oral evidence in connection with its subject matter.

The prosecutor should invite the court to receive the statement (or part of it) as admissible evidence to the extent that oral evidence would be admissible. The victim must confirm that the statement is theirs and that it is true.

Prosecutors should consider the case of R v Chinn [2012] EWCA Crim 501. In this case the offender appealed their conviction for assault. The argument was that the CPS should not have been allowed to introduce parts of the witness statement where the witness could not remember the underlying events directly. The appeal failed. The Court held that the statement had identified or described a person, object or place that related to an alleged offence or other relevant event, namely, the statement described the appellant and identified them as being the person in club at the relevant time who threw a glass. However, parts of the witness statement that gave narrative beyond identifying the appellant and the object were not admissible. Prosecutors therefore need to ensure applications are made only in relation to relevant parts of the statement not all of it, under section 120(4) and (5) CJA 2003.

Where the victim remains resolute in not supporting the prosecution despite attending court, prosecutors should consider requesting leave from the court to treat the witness as 'hostile'. The rules under s119 CJA 2003 apply and a prosecutor can make an application to treat a witness as hostile at the instant a witness is showing unmistakeable signs of hostility and when they have given directly opposing evidence in court compared to that given in their police statement. (R v Pestano [1981] Crim LR 397), which may for example, be demonstrated through the making of a deliberately inconsistent statement or refusing to answer questions asked. However, this cannot be used where a victim is merely unfavourable or has not come up to proof.

If leave is granted by the Court, the prosecutor will be entitled to put a previous inconsistent statement to the victim by using leading questions and cross-examination of the victim to establish the truth. Prosecutors should continue to ensure they treat the victim with sensitivity having in mind the circumstances and context of DA. If, on being cross-examined the victim does not admit to the truth of a previous inconsistent statement, it can be admitted under section 119 CJA 2003 as evidence of matters stated of which oral evidence by the victim would be admissible. It is possible, that through this approach, the victim's account extracted under cross-examination could provide strong evidence in relation to the allegation, and subsequently secure a conviction.

Prosecutors can also use section 119 CJA 2003 where the victim has shown signs that they are likely to be hostile, for example, they have already provided a retraction/withdrawal statement prior to the trial date. In R v Bashir [2011] EWCA Crim 2763 the victim withdrew the allegations. The compelling details contained in the victim’s original statement were allegations worthy of belief as they were supported by the evidence of the PCs who saw the injury and damage in the home.

Prosecutors should consider carefully if this is the appropriate application to make and should ensure in advance of starting the trial that they have all up to date risk assessments and background information regarding the witness. If not, prosecutors may at the appropriate stage in the trial seek to ask the court for a short break in proceedings to obtain the information from the police or other support agencies, to ensure an informed decision is made before seeking to make the application at Court.

Prosecutors should refer to the Hearsay prosecution guidance for more detail.

Sentencing and Ancillary Orders

This section should be read in conjunction with the Sentencing Overview prosecution guidance which provides further detail on prosecutors' obligations regarding unduly lenient sentences and applications for ancillary orders. Prosecutors should be aware of and consider the full range of ancillary orders available (and their limitations) prior to making any application. Further guidance can be found at the Sentencing - Ancillary Orders prosecution guidance page.

The Attorney General's Guidelines on the Acceptance of pleas the Prosecutor's Role in the Sentencing Exercise sets out clearly the prosecutor’s responsibility to assist the court to reach its decision as to the appropriate sentence. The prosecutor should draw the court’s attention to:

• any VPS or other information available to the prosecution advocate as to the impact of the offending on the victim
• where appropriate, any evidence of the impact of the offending on the community
• any statutory provisions relevant to the offender and the offences under consideration
• any relevant sentencing guidelines and guideline cases,
• the Sentencing Council’s Overarching guidelines for DA, and
• the aggravating and mitigating factors of the offence under consideration.

Prosecutors' duty to actively assist the court should include reference to the abuse of trust in a domestic setting as an aggravating factor, as well as the vulnerability of victims. Specific reference should be made to the nature of offending involved, and a particular emphasis on the nature of the relationship between the victim and offender to assist the court in reaching an informed decision about the most appropriate sentence. As noted above prosecutors should refer to relevant sentencing guidelines for the specific offence(s) and the overarching DA guidelines, all of which can be found at the Sentencing Council website. Prosecutors should also consult the relevant prosecution guidance for the specific offences prosecuted.

The Sentencing Act 2020 consolidated sentencing law and applies to all defendants convicted on or after 1 December 2020, irrespective of the date on which the offence was committed. The previous laws remain in force for sentences imposed where the conviction was before this date, even where a sentencing order is breached after that date.

Restraining orders (RO)

This section should be read in conjunction with the prosecution guidance on Restraining orders.

All prosecutors should have in mind at the time of charge and when reviewing a case, whether a RO is appropriate in the event of a conviction or an acquittal. These should be considered in every DA case. The orders are intended to be preventative and protective. There must be a need for the order to protect a person.

From 1 December 2020 the court can order a RO upon conviction under section 360 Sentencing Act 2020 (previously section 5 Protection from Harassment Act 1997). From 1 December 2020 the court can make a RO on acquittal under section 5A of the Protection from Harassment Act 1997 (previously under section 5 Protection from Harassment Act 1997). The rationale for making, or not, a RO application should be recorded in the review on CMS.

Criminal Behaviour Orders (CBO)

This section should be read in conjunction with the prosecution guidance on Criminal Behaviour Orders.

The provisions relating to CBO’s are at section 330-342 Sentencing Act 2020, (previously part 2 of the Anti-social Behaviour, Crime, and Policing Act 2014).

Prosecutors should have in mind at the time of charge and when reviewing the case whether it would be appropriate to apply for a CBO. These are available where an offender is convicted for any criminal offence in a criminal court. These can be made available to prevent further incidents of DA however, these orders are primarily intended to protect the wider community. It is likely that other orders are more appropriate when there is a named victim and the offence is one which falls within the DA definition.

Sexual Harm Prevention Orders (SHPO)

This section should be read in conjunction with the chapter 15 of prosecution guidance on Rape and Sexual Offences. Prosecutors should have in mind at the time of charge and when reviewing the case whether it would be appropriate to apply for a SHPO. These are available where an offence is before the Court in relation to an offence in Schedule 3 or 5 if the Sexual Offences Act 2003 or a Chief of Police or the Director General of the National Crime Agency can make an application.

Compensation

Compensation orders are governed by section 133-146 SA 2020 (previously section 130-133 PCC(S)A 2000). The court has the power to order compensation to be paid by a convicted offender and is under a statutory duty to consider making a compensation order whenever it has the power to do so.

Applications for compensation should also be made where appropriate, bearing in mind that in some circumstances, it may not be appropriate for a compensation order to be made. Orders are often met from family money, and may be used as an opportunity to abuse, or control a victim further.

Victims may therefore want to forgo compensation to avoid this situation. It is important that prosecutors discuss this with the victim or relevant support organisation to seek their view for an informed approach.

When making applications for compensation prosecutors should refer to the Sentencing - Ancillary Orders prosecution guidance for further detail.

Civil Orders

Numerous civil orders are available to victims in the family and civil courts. Prosecutors should seek information about any civil orders that have previously been obtained as they should help to build the case. If a prosecution cannot proceed prosecutors should remind the police, if appropriate, about the availability of civil orders. Civil orders include:

Domestic Violence Protection Notices and Domestic Violence Protection Orders

Section 24-33 Crime and Security Act 2010 introduced Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs) from 8 March 2014.

A DVPN provides the police with the power to provide immediate protection to victims against DA offenders (aged 18 or over) where they have reasonable grounds for believing that the offender has been violent towards or has threatened violence towards, a victim and it would be necessary to protect the victim. The police may use this where they consider there are no enforceable restrictions that can be placed on the offender e.g. where the police take no further action or where the offender has received a simple caution or has been bailed without conditions. Where prosecutors received a DA case and a decision is made to take no further action, prosecutors should nonetheless advise police that they can consider applying for these orders to protect victims. DVPNs only have effect for 48 hours after which an application must be made by the police to a magistrates' court to apply for a DVPO.

DVPOs provide the police and magistrates with the power to:

• enforce non-molestation of the victim.
• stop an offender from contacting the victim.
• prevent an offender from evicting/excluding the victim from a premises (their household).
• remove an offender from a premises (their household); and/or,
• prevent an offender from returning to a premises (their household) for a period of up to 28 days.

The court must be satisfied on the balance of probabilities that the offender has been violent or threatened violence and that the order is necessary to protect the victim. All these actions can be taken with or without a victim's consent.

DVPOs may be in force for no fewer than 14 days beginning on the day on which it is made, and no more than 28 days beginning with the day on which it was made.

Prosecutors should note that a breach of a DVPN or DVPO is a civil contempt of court and is punishable by a fine, or up to 2 months' imprisonment. Where prosecutors are requested to deal with the breach of a DVPN or DVPO, this request must be declined as the CPS has no legal locus to handle such matters.

Prosecutors should note that these will be replaced with Domestic Abuse Protection Notices and Domestic Violence Protection Orders under Part 3 DA Act, but these are not yet in force. This guidance will be updated to reflect these changes when the relevant sections of the DA Act have been commenced. This will be piloted in certain police force Areas initially, for more information and check whether your CPS Area falls within the pilot scheme please contact your Area DA lead.

Injunctions

Section 3 of the Protection from Harassment Act 1997 enables harassment to be defined as a tort for which a victim can bring civil legal proceedings. Proceedings under section 3 may be founded based on one act and anticipated further breaches of section 1, in contrast to criminal proceedings under sections 2 or 4 that require at least two actual incidents to constitute a course of conduct.

Non-molestation orders

Non-molestation orders are civil orders which cannot be applied for by the CPS. Orders are made on application by the victim or a representative to the Family Court under section 42(2) or section 45(1) (for ex parte applications) of the Family Law Act 1996.

Section 12 of the Domestic Violence Crime and Victims Act 2004 made the breach of a non-molestation order a criminal offence, prosecutable by the CPS.

Stalking Protection Orders

The Stalking and Protection Act 2019 introduced Stalking Protection Orders (SPO), which are civil orders. A SPO is made on application to the magistrate’s court by the police. Applications for interim or full orders can be made. Within an application for a SPO or an interim order, police can request both prohibitions and/or requirements to protect the victim from the risk of stalking. Breach of either the interim order or the full order is a criminal offence.

Prosecutors can find further guidance on SPOs in Stalking Protection Orders prosecution guidance.

Forced Marriage Protection Orders

The Forced Marriage (Civil Protection) Act 2007 allows civil courts to make Forced Marriage Protection Orders (FMPO) to protect people from forced marriages or to pre-empt forced marriages from occurring. The courts have a wide discretion in the type of injunctions they can make allowing them to respond effectively to the individual circumstances of the case.

Breach of a FMPO is a criminal offence.

Prosecutors can find further guidance in the So-Called Honour-Based Abuse and Forced Marriage prosecution guidance.

Occupation Orders

Occupation orders are civil orders which cannot be applied for by the CPS. They are made on application by the victim or a representative to the Family Court. These enforce, declare or restrict the rights to occupy a family home.

Breach of Orders

It is important that breaches of orders are carefully considered, as new offences may also have been committed in addition to the breach of the order. Prosecutors must review all new offences to assess whether a prosecution should follow for any new offence as well as the breach of the order.

Victims may have protective orders in place, such as a non-molestation order or a RO. If this order is breached this is a criminal offence which prosecutors should review as a specific offence and apply the Code, to determine if the offence(s) should be charged. Breaches should be taken as seriously as any other DA offence. Prosecutors are reminded that breaches of a DVPN or DVPO are not within the CPS remit to prosecute.

Prosecutors should note that breaches of protective orders (RO and non-molestation orders) have specific sentencing guidelines which must be considered when reviewing a case and presenting the case to the Court. For further information regarding breaches of a RO, prosecutors should refer to the Restraining Orders prosecution guidance.

Defence(s) to breach of criminal or civil order

The only statutory defence to the breach of an order is that the defendant had a reasonable excuse. Once raised by the defendant, it will be for the prosecution to disprove this beyond reasonable doubt. 

Misconceptions and assumptions

DA misconceptions and assumptions might be described as: beliefs and attitudes people have specifically about domestic abuse that are commonly and persistently held yet, may be factually inaccurate.

These should play no part in the prosecutor’s decision-making, but they do need to be identified and addressed. Issues affecting particular groups of people should also be identified and addressed where they arise. This will ensure that a proper case strategy is developed and the case is effectively presented at court. Some behaviour by victims may seem counter-intuitive and require explanation as part of the case building strategy.

Annex C (below) incorporates general information to tackle misconceptions and assumptions, although it should be noted that this is not an exhaustive list.

Impacts of DA

Prosecutors need to understand the vulnerability of DA victims, particularly the control, coercion, and intimidation that victims may have experienced. It is rarely a one-off incident, and the cumulative and interlinked physical, psychological, sexual, emotional, or economic abuse can have a particularly damaging effect on the victims and those around them. DA may become increasingly frequent, and more serious the longer it continues.

Cases in which the victim has withdrawn from the prosecution do not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case. Some victims risk losing a lot through supporting a prosecution, which may lead them to later disengage from a case of their own volition. Prosecutors need to be sensitive to this issue and must not engage in any conduct which supports the position that the victim is complicit in perpetrating the abuse they are experiencing. Victims will be making a difficult choice in reporting the abuse to the police in the first place; it is therefore important that they are handled with appropriate care and support through the lifecycle of any criminal proceedings.

Identification of the triggers for abuse will assist in understanding the context of the offending. These issues should be considered as risk factors, rather than as causal links to the offending behaviour. This may assist when considering factors to be considered for bail applications and/or terms for restraining orders (RO) at later stages of the prosecution process. Some examples of risk factors may include (this is not an exhaustive list):

• the disclosure of an individual's sexual orientation;
• changes in a relationship, such as a reconciliation, break-up, or separation;
• new surroundings, such as a move to a new area, school/college, or job;
• the introduction of new people in a social context, such as new friends or partners which may have changed an individual's perceived routine behaviour;
• pregnancy or loss of pregnancy;
• retirement from employment, or loss of employment – and subsequent impact on finances;
• illness or mental/physical incapacitation;
• initiation or termination of criminal proceedings;
• custody proceedings in the family courts;
• Age, (younger or older)
• immigration issues; or,
• limited access to assets, finances, or opportunities.

Some of these factors could also lead to a cessation or reduction in abuse. This document does not focus on triggers that have caused abuse but draws upon how those circumstances contribute to a pattern of abuse or violent behaviour against a victim.

There will be many instances where a victim will not be able to escape the abuse or suspect they live with. They may be dependent on them for finances, care, housing, provision of medication, or immigration security. Prosecutors should ensure that they have full background information from the police to understand these issues and be able to assist with any criminal justice remedy to support the safety requirements needed by victims.

Victims will often not realise that they are in relationship with a suspect of abuse, as some abuse behaviours may not in fact be violent or immediately obvious; prosecutors therefore should handle cases sensitively and without any preconceptions. Victims may adjust their behaviour to try and prevent any further abuse or violence, especially where a child victim or other dependants are present in the household, or to simply have an 'easier time'. Such behaviour may as a result be 'normalised', with the victim showing no obvious or expected behaviours. This should not divert away from recognising the potential harm experienced by the victim or witnesses. Prosecutors should ensure that no assumptions are made in relation to victims and should refer to guidance at Annex C.

Prosecutors should also consider the impact of DA and specific methods of control or coercion on relevant particular groups of people. For further information regarding DA impacts prosecutors should refer to Annex D.

Domestic Homicide Reviews

Prosecutors should refer to the Inquiries and Reviews - guidance on CPS engagement prosecution guidance for more information regarding DHRs.

Any CPS Areas that are notified of DHRs or are requested to provide information to assist in one should provide notification to the DLS team as soon as a request is made.

Annex A: Joint Evidence Checklist

The Joint NPCC and CPS Evidence Gathering Checklist can be accessed via the link Joint NPCC and CPS Evidence Gathering Checklist.

Annex B: Witness Summons

Annex B sets out the factors tending in favour of a summons and those tending against a summons. Prosecutors may find this helpful in assisting them with their decision. A combination of factors needs to be considered, with all options balanced; a seemingly minor incident may be serious in the context of escalating abuse.

Factors in favour of a summons:

• serious offence (or escalation of severity from previous incidents);
• serious injuries:
• violent relationship and/or pattern of offending;
• high level of continued dependency/contact between suspect and victim (e.g. carer/patient or child/parent relationships)
• attack had been planned;
• incident witnessed seen or heard by a child victim or any other dependent;
• offence(s) was committed in the presence of or in close proximity to a child victim;
• offence(s) have been committed against a child victim or other dependent;
• effect (including psychological) on any child victim or other dependant living in the household;
• likelihood of recurrence;
• threat to health and/or safety of victim or any other person involved;
• victim is pregnant;
• further incidents;
• relationship assessed as 'unstable';
• no separation or divorce proceedings;
• still lives within same household;
• defendant's criminal history (particularly if there has been any previous violence); or,
• information from any other agencies supporting proceeding with a prosecution (e.g. Social Services, Housing, Health, Women's Aid, other voluntary sector [including suspect services]).

Factors against a summons:

• minor offence and isolated event;
• no injuries or minor injuries;
• no further incidents;
• no further police call-out;
• no ongoing civil proceedings; or,
• no history of volatile relationship.

Annex C: Important points to remember in cases of domestic abuse

It is vital that prosecutors handle domestic abuse cases effectively and without any preconceptions of what a victim will look like or behave. Victims may sometimes not realise that they are in a relationship with an abusive partner, as some abusive behaviours may not be violent or immediately obvious.

Victims may adjust their behaviour to try and prevent any further abuse or violence, especially where children or other dependents are present in the household, or to simply have an easier time; such behaviour may as a result be normalised. The victim may not demonstrate obvious or expected behaviours but it is important to remember that this does not mean they have not been subjected to abuse. Prosecutors may come across the following factors:

• The offence not being reported immediately; or the account or inconsistencies in the account provided;
• The victim carrying on with their everyday life; or voluntarily returning to their abuser; or,
• The victim’s reliance on alcohol or other substances.

Rather than undermining the credibility and reliability of the victim’s account, these factors may provide evidence that the victim has been, and/or continues to be abused. Victims of DA typically experience a number of abusive incidents before they feel able to report the matter.

The following section contains factual statements about domestic abuse together with case studies to help illustrate how the police and prosecutors can develop robust case strategy when dealing with cases of domestic abuse. The names, and some specific details and time frames have been altered to ensure that individuals cannot be identified.

1. Domestic abuse is more serious than similar offending in a non-domestic setting

• All domestic abuse cases are serious and amongst the highest priority work being dealt with by the CPS and criminal justice system.
• Abuse of trust and power is an aggravating factor in DA cases and the seriousness of such offending is reflected in sentencing guidelines. Prosecutors should refer to the Sentencing Council guidelines for the Overarching Principles: Domestic Abuse.
• Prosecutors must encourage investigators to take a suspect-centric approach to case building which involves looking closely at the actions of the suspect before, during and after the alleged offence.
• It is important that efforts aimed at gathering evidence to build a robust prosecution case are not focused solely on the evidence of the victim. An evidence led case seeks to demonstrate guilt without placing all the reliance on the victim’s account.
• Many different criminal offences can involve domestic abuse and, where they do, advocates should bring this to the attention of the court. It is, an aggravating factor, in accordance with the overarching principles above.

Relevant Caselaw / Links

The Sentencing Council’s guidelines for the Overarching Principles: Domestic Abuse state the ‘domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.'

2. A victim’s behaviour is never justification for abuse perpetrated against them

• Prosecutors should be alert to the potential for escalating risk. DA is rarely a one-off incident, and the cumulative and interlinked physical, psychological, sexual, emotional, or economic abuse has a particularly damaging effect on the victim and those around them. DA is likely to become increasingly frequent, and more serious the longer it continues and may result in death. Prosecutors should keep cases of domestic abuse under constant review which includes assessing and reassessing the safety of victim and witnesses involved in the case through the police and specialist support agencies. Even minor offences have the potential to be followed by more serious incidents.
• Within the context of mutually violent relationships, it is important to consider that women are more likely to be injured and injured more severely than men.

Relevant Caselaw / Links

Conflict and Control Gender Symmetry and Asymmetry in Domestic Violence Michael P. Johnson.

Self defence prosecution guidance

3. Abuse can manifest in many forms, including physical abuse, emotional abuse, psychological abuse, and controlling or coercive behaviour

• Domestic abuse does not need to involve physical abuse. Abusers may use non-physical manipulative techniques to control, intimidate and/or coerce their victims.
• The Domestic Abuse Act 2021 recognises behaviour is abusive if it consists of any of the following, and it does not matter whether the behaviour consists of a single incident or a course of conduct:
  • Physical or sexual abuse
  • Violent or threatening behaviour
  • Controlling or coercive behaviour
  • Economic abuse
  • Psychological, emotional, or other abuse
• Even when it does involve physical abuse, domestic abuse does not always leave physical signs.
• Where it does leave physical signs, these don’t always present in the same way. The colours of a bruise, for example, can appear different depending on the victim's skin tone, and bruising may be less apparent on victims with darker skin tones. Victims may also attempt to cover up visible injuries left by physical abuse or provide false explanations for how injuries occurred.
• Non-fatal strangulation and non-fatal suffocation often leaves minimal or no visible injury on the victim. The lack of visible injury alone should therefore not undermine any decision to prosecute.
• Trauma can be as serious and extensive for non-physical as well as physical abuse and should be taken as seriously by prosecutors. Where allegations of non-physical abuse have been made, prosecutors should direct investigators to identify whether this forms a pattern of behaviour and avoid dismissing such incidents as trivial or insignificant.

Relevant Caselaw/ Links - (FOUND ON WEBSITE LINK)

Prosecutors should consult the Vulnerable Victims Toolkit which highlight common types of offender tactics and behaviours.

Domestic Abuse Act 2021.

Serious Crime Act, s76 Controlling or coercive behaviour in an intimate or family relationship.

Non-fatal strangulation and non-fatal suffocation prosecution guidance.

4. Domestic abuse represents the exertion of control, not a loss of control

• There is no justification for domestic abuse. Domestic abuse suspects can be calculating in the way they deploy abusive behaviour to minimise the chance of being challenged or a report being made to the police. They may also seek to rationalise their behaviour because of their professed love, strength of feeling or concern for the victim. Prosecutors should identify and challenge any attempt at justification on such grounds with reference to the law and the facts of the case.
• The victim may co-operate with the abuser out of fear that they or someone they care about could otherwise be seriously injured, killed, or experience some other harm.
• DG6 at Annex 3 confirms that when a charging decision is submitted 'Checklists including those relevant to cases involving Domestic Abuse, Harassment or Stalking, Hate Crime, Youths' forms part of the evidential material and must be included with the file.

5. Domestic abuse can consist of a single incident or multiple incidents

• The Domestic Abuse Act 2021 states that it does not matter whether the behaviour consists of a single incident or course of conduct.
• Incidents of domestic abuse are rarely a one-off and will in many cases increase in frequency and severity.

Domestic Homicide Reviews

Prosecutors should refer to the Inquiries and Reviews - guidance on CPS engagement prosecution guidance for more information regarding DHRs.

Any CPS Areas that are notified of DHRs or are requested to provide information to assist in one should provide notification to the DLS team as soon as a request is made.

Annex A: Joint Evidence Checklist

The Joint NPCC and CPS Evidence Gathering Checklist can be accessed via the link Joint NPCC and CPS Evidence Gathering Checklist.

Annex B: Witness Summons

Annex B sets out the factors tending in favour of a summons and those tending against a summons. Prosecutors may find this helpful in assisting them with their decision. A combination of factors needs to be considered, with all options balanced; a seemingly minor incident may be serious in the context of escalating abuse.

Factors in favour of a summons:

• serious offence (or escalation of severity from previous incidents);
• serious injuries:
• violent relationship and/or pattern of offending;
• high level of continued dependency/contact between suspect and victim (e.g. carer/patient or child/parent relationships)
• attack had been planned;
• incident witnessed seen or heard by a child victim or any other dependent;
• offence(s) was committed in the presence of or in close proximity to a child victim;
• offence(s) have been committed against a child victim or other dependent;
• effect (including psychological) on any child victim or other dependant living in the household;
• likelihood of recurrence;
• threat to health and/or safety of victim or any other person involved;
• victim is pregnant;
• further incidents;
• relationship assessed as 'unstable';
• no separation or divorce proceedings;
• still lives within same household;
• defendant's criminal history (particularly if there has been any previous violence); or,
• information from any other agencies supporting proceeding with a prosecution (e.g. Social Services, Housing, Health, Women's Aid, other voluntary sector [including suspect services]).

Factors against a summons:

• minor offence and isolated event;
• no injuries or minor injuries;
• no further incidents;
• no further police call-out;
• no ongoing civil proceedings; or,
• no history of volatile relationship.

Annex C: Important points to remember in cases of domestic abuse

It is vital that prosecutors handle domestic abuse cases effectively and without any preconceptions of what a victim will look like or behave. Victims may sometimes not realise that they are in a relationship with an abusive partner, as some abusive behaviours may not be violent or immediately obvious.

Victims may adjust their behaviour to try and prevent any further abuse or violence, especially where children or other dependents are present in the household, or to simply have an easier time; such behaviour may as a result be normalised. The victim may not demonstrate obvious or expected behaviours but it is important to remember that this does not mean they have not been subjected to abuse. Prosecutors may come across the following factors:

• The offence not being reported immediately; or the account or inconsistencies in the account provided;
• The victim carrying on with their everyday life; or voluntarily returning to their abuser; or,
• The victim’s reliance on alcohol or other substances.

Rather than undermining the credibility and reliability of the victim’s account, these factors may provide evidence that the victim has been, and/or continues to be abused. Victims of DA typically experience a number of abusive incidents before they feel able to report the matter.

The following section contains factual statements about domestic abuse together with case studies to help illustrate how the police and prosecutors can develop robust case strategy when dealing with cases of domestic abuse. The names, and some specific details and time frames have been altered to ensure that individuals cannot be identified.

1. Domestic abuse is more serious than similar offending in a non-domestic setting

• All domestic abuse cases are serious and amongst the highest priority work being dealt with by the CPS and criminal justice system.
• Abuse of trust and power is an aggravating factor in DA cases and the seriousness of such offending is reflected in sentencing guidelines. Prosecutors should refer to the Sentencing Council guidelines for the Overarching Principles: Domestic Abuse.
• Prosecutors must encourage investigators to take a suspect-centric approach to case building which involves looking closely at the actions of the suspect before, during and after the alleged offence.
• It is important that efforts aimed at gathering evidence to build a robust prosecution case are not focused solely on the evidence of the victim. An evidence led case seeks to demonstrate guilt without placing all the reliance on the victim’s account.
• Many different criminal offences can involve domestic abuse and, where they do, advocates should bring this to the attention of the court. It is, an aggravating factor, in accordance with the overarching principles above.

Relevant Caselaw / Links

The Sentencing Council’s guidelines for the Overarching Principles: Domestic Abuse state the ‘domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.'

2. A victim’s behaviour is never justification for abuse perpetrated against them

• Prosecutors should be alert to the potential for escalating risk. DA is rarely a one-off incident, and the cumulative and interlinked physical, psychological, sexual, emotional, or economic abuse has a particularly damaging effect on the victim and those around them. DA is likely to become increasingly frequent, and more serious the longer it continues and may result in death. Prosecutors should keep cases of domestic abuse under constant review which includes assessing and reassessing the safety of victim and witnesses involved in the case through the police and specialist support agencies. Even minor offences have the potential to be followed by more serious incidents.
• Within the context of mutually violent relationships, it is important to consider that women are more likely to be injured and injured more severely than men.

Relevant Caselaw / Links

Conflict and Control Gender Symmetry and Asymmetry in Domestic Violence Michael P. Johnson.

Self defence prosecution guidance

3. Abuse can manifest in many forms, including physical abuse, emotional abuse, psychological abuse, and controlling or coercive behaviour

• Domestic abuse does not need to involve physical abuse. Abusers may use non-physical manipulative techniques to control, intimidate and/or coerce their victims.
• The Domestic Abuse Act 2021 recognises behaviour is abusive if it consists of any of the following, and it does not matter whether the behaviour consists of a single incident or a course of conduct:
  • Physical or sexual abuse
  • Violent or threatening behaviour
  • Controlling or coercive behaviour
  • Economic abuse
  • Psychological, emotional, or other abuse
• Even when it does involve physical abuse, domestic abuse does not always leave physical signs.
• Where it does leave physical signs, these don’t always present in the same way. The colours of a bruise, for example, can appear different depending on the victim's skin tone, and bruising may be less apparent on victims with darker skin tones. Victims may also attempt to cover up visible injuries left by physical abuse or provide false explanations for how injuries occurred.
• Non-fatal strangulation and non-fatal suffocation often leaves minimal or no visible injury on the victim. The lack of visible injury alone should therefore not undermine any decision to prosecute.
• Trauma can be as serious and extensive for non-physical as well as physical abuse and should be taken as seriously by prosecutors. Where allegations of non-physical abuse have been made, prosecutors should direct investigators to identify whether this forms a pattern of behaviour and avoid dismissing such incidents as trivial or insignificant.

Relevant Caselaw/ Links

Prosecutors should consult the Vulnerable Victims Toolkit which highlight common types of offender tactics and behaviours.

Domestic Abuse Act 2021.

Serious Crime Act, s76 Controlling or coercive behaviour in an intimate or family relationship.

Non-fatal strangulation and non-fatal suffocation prosecution guidance.

4. Domestic abuse represents the exertion of control, not a loss of control

• There is no justification for domestic abuse. Domestic abuse suspects can be calculating in the way they deploy abusive behaviour to minimise the chance of being challenged or a report being made to the police. They may also seek to rationalise their behaviour because of their professed love, strength of feeling or concern for the victim. Prosecutors should identify and challenge any attempt at justification on such grounds with reference to the law and the facts of the case.
• The victim may co-operate with the abuser out of fear that they or someone they care about could otherwise be seriously injured, killed, or experience some other harm.
• DG6 at Annex 3 confirms that when a charging decision is submitted 'Checklists including those relevant to cases involving Domestic Abuse, Harassment or Stalking, Hate Crime, Youths' forms part of the evidential material and must be included with the file.

5. Domestic abuse can consist of a single incident or multiple incidents

• The Domestic Abuse Act 2021 states that it does not matter whether the behaviour consists of a single incident or course of conduct.
• Incidents of domestic abuse are rarely a one-off and will in many cases increase in frequency and severity.

Relevant Caselaw / Links

Prosecution guidance on Controlling or coercive behaviour.

Charging (The Director's Guidance) - sixth edition (Annex 3).

The Joint NPCC and CPS Evidence Gathering Checklist

6. Domestic abuse is not a private family matter, it is a crime.

• Victims may feel that they should not or cannot report abuse to the police to protect their or the suspect’s family, especially if they are being subjected to controlling or coercive behaviour.
• Additional considerations, such as pressure from within the immediate and extended family or wider community may prevent or delay victims from reporting offences of DA.

Relevant Caselaw / Links

Consult the principles the CPS prosecution guidance Hearsay

7. False allegations of domestic abuse are extremely rare

• Any and all allegations of domestic abuse made by a victim should be treated seriously by prosecutors. Coming forward to report domestic abuse is often extremely difficult for victims and can be retraumatising. Consequently, many victims never come forward to report the abuse they have experienced because they are concerned that their allegations will be minimised.
• Domestic abuse often takes place in private, so the victim may be the only witness. The law does not require corroboration. Prosecutors can (and do) proceed on the word of the victim against that of the suspect, because that account is evidence.
• Prosecutors must encourage investigators to take a suspect-centric approach to case building which involves looking closely at the actions of the suspect before, during and after the alleged offence.
• It is important that efforts are made to build evidence led cases that seek to demonstrate guilt without placing all the reliance on the victim’s account
• Giving evidence may be very difficult for victims or may cause additional difficulties. Prosecutors should consider all support that is available for victims.

Relevant Caselaw / Links

See the section in DA prosecution guidance on:

• Suspect-Centric Approach
• Case Building

8. Domestic abuse is prevalent across all communities, regardless of culture, race, religion, or belief

• Domestic abuse can have a long lasting and detrimental effect on victims, their children, families, and extended networks.
• Abusers may seek to manipulate or interpret religious text(s) to justify their harm of the victim, their behaviour or prevent them from seeking safety/justice. Prosecutors and investigators should avoid minimising or dismissing abusive behaviours as being a cultural norm. Prosecutors should identify and challenge any attempt at justification on racial or religious grounds with reference to the law and the facts of the case.
• Some victims may face cultural or other barriers that prevent them from seeking help, such as fear of dishonouring family, shame, stigma, shunning, taboo and being rejected by the community. Victims may be told to be patient and / or pray for their situation to change rather than seeking protection or justice through the criminal justice system.
• Such barriers may cause delay in reporting. For offences of common assault or battery which amount to DA as defined in section 1 DA Act 2021 proceedings can be commenced when both the following apply: at any time within 2 years from the date of the offence and within six months from the first date the victim made the statement or was interviewed about the incident.
• Abusers may also seek to use the victim’s religious or cultural background to justify their behaviour or deflect from their own behaviour. An example of this may be a perpetrator justifying isolating the victim from their family due to false concerns about so-called honour-based abuse or forced marriage.

Relevant Caselaw / Links

Refer to Issues relevant to particular groups within DA prosecution guidance.

Consider expert evidence, refer to Evidence led prosecutions section in DA prosecution guidance.

9. Women are disproportionately impacted by domestic abuse, but men and trans or non-binary individuals can be victims, as well as children

• People of all genders and gender variance can be victims or suspects of domestic abuse. Each victim should be looked at as a unique individual,
• Whilst men and women can be perpetrators of domestic abuse, it is a gendered crime most commonly perpetrated by men against women.
• Prevalence studies of domestic abuse evidence the disproportionate experience that women have of domestic abuse. Data supplied by 26 police forces to the Office for National Statistics shows in the year ending March 2021 the victim was female in 73% of domestic-abuse related crimes.
• Crime Survey for England and Wales An estimated 6.9% of women (1.7 million) and 3.0% of men (699,000) experienced domestic abuse in the last year.
• DA prosecution guidance applies to all victims and suspects, irrespective of gender, or sexual orientation.

Public statement on male victims for crimes covered by the CPS Violence against Women and Girls (VAWG) Strategy.

10. Domestic abuse can take place across different types of relationships, including between intimate partners and between, family members such as child to parent and parent to child

• Family members such as in-laws, children, grandparents, or other extended family can perpetrate domestic abuse.
• Domestic abuse can occur where the victim and suspect no longer or have never lived together; for example, teenagers in relationships and abuse committed by extended family members.
• The Domestic Abuse Act 2021 once implemented will remove the co-habitation requirement from the offence of controlling or coercive behaviour (section 76 Serious Crime Act 2015), ensuring that post-separation abuse and familial domestic abuse is provided for when the victim and suspect do not live together.
• DA prosecution guidance applies to all cases of current or former partner or family domestic abuse on an equal basis.

Relevant Caselaw / Links

Refer to Issues relevant to particular groups within DA prosecution guidance.

Public statement on male victims for crimes covered by the CPS Violence against Women and Girls (VAWG) Strategy.

11. Young people can face prosecution for domestic abuse

• The definition of domestic abuse applies to offenders 16 and over.
• Young offenders can be just as dangerous as older offenders and can be serial offenders.
• Teenage relationships can involve domestic abuse, it does not only occur in relationships between adults.
• Prosecutions will always proceed where there is sufficient evidence, and it is in the public interest.

Relevant Caselaw / Links

Prosecutors should consult the prosecution guidance on Children as Suspects and Defendants.

12. Consumption of alcohol or drugs is an aggravating factor in the Domestic Abuse Sentencing Guidelines

• Alcohol and drugs or sporting events, such as football, can make abusive situations worse, but they do not cause domestic abuse and the abuser is solely responsible for their actions.
• Being under the influence of alcohol/drugs is an aggravating factor. Prosecutors have a duty to actively assist the court with the law and guidelines on sentencing
• The World Health Organisation (WHO) estimates that approx. 55% of domestic abuse perpetrators consumed alcohol prior to assault.

Relevant Caselaw / Links

Sentencing Council's Guidelines on the Overarching principles: Domestic Abuse.

13. Strong / independent / powerful / older people can be victims of domestic abuse

• There is no typical victim of domestic abuse. People of all ages, appearance, status, characteristics, and backgrounds can be victims. Prosecutors should challenge any assertion that typifies who perpetrates domestic abuse and who is subjected to abuse.
• Domestic Abuse incidents often take place in private, so the victim may be the only witness.
• Giving evidence may be very difficult for victims, or may cause additional difficulties (for example, fear of reprisals; safety of their children; increased family pressures or serious financial repercussions; fear of being outed; fear of a lack of support by the criminal justice system, or specialist support organisations; or an emotional attachment or loyalty towards the offender), leading to uncertainty about the course of action they should take.

Relevant Caselaw / Links

Display of emotion/distress or lack of it when providing account to the police played to the jury and/or when giving evidence.

Crown Court Compendium – Example 7, page 20-7.

14. Victims who have previously withdrawn complaints or expressed a fear to co-operate with a prosecution, have previous convictions or do not report domestic abuse immediately after an incident occurs can be credible witnesses

• If a statement is retracted, a prosecution can still proceed.
• Victims can face very difficult decisions when considering whether to report domestic abuse and/or support a prosecution. Some may decide not to report or withdraw support for a number of reasons including intimidation by the accused, fear of not being believed, coerced into withdrawing, limited knowledge of or access to support services or places of safety, lack of economic resources to support themselves and their children, or fear of the consequences including if there are children in the relationship, or fear of being killed if the prosecution is not successful.
• Efforts by investigators and prosecutors should be made to identify evidence to demonstrate guilt without placing all the reliance on the victim’s account. Consideration should be given to making a hearsay application.
• Careful consideration of any special measures, or other support requirements are all important factors for prosecutors to consider.
• Section 62 DA Act ensures that all DA victims are automatically eligible for special measures whenever it is alleged that behaviour falls within the DA definition. S27 YJCEA (admitting a visually recorded interview of evidence in chief) & S28 YJCEA (admitting visual pre-recorded cross-examination or re-examination) are currently only available for DA victims in sexual offence trials in the Crown Court.
• Prosecutors should always consider whether there is any risk to the safety of the victim in the case by proceeding without their support.
• The Attorney General’s Guidelines on Disclosure 2022, provide factors to consider when deciding whether material satisfies the disclosure test.

Relevant Caselaw / Links

Victims of DA are entitled to receive an enhanced service under the Code of Practice for Victims of Crime.

Prosecutor should refer to the Victims and Witnesses: CPS Public Policy Statement on the Delivery of Service to Victims – The Prosecutor's Pledge.

Where the victim remains resolute in not supporting the prosecution, prosecutors should consider requesting leave from the court to establish if the witness is reluctant or hostile within the meaning of the law. Such applications should be made at the first signs of hostility, (R v Pestano [1981] Crim LR 397).

See section in DA prosecution guidance on Reluctant and hostile victims and witnesses.

The Domestic-Violence Disclosure Scheme provides two routes for disclosing information on suspect behaviour – the “Right to Know” and the “Right to Ask.

15. Victims who have a learning disability or mental health condition can be credible witnesses

• Suspects often deliberately target individuals who are vulnerable due to mental or physical health conditions or disabilities and may also refer to them in attempts to undermine the victims’ account or use them as a tool of coercion. Prosecutors should take a suspect-centric approach to considering the facts of the case.
• A person with a mental health condition and/or disability can become more symptomatic after trauma or during recall of trauma. This does not mean that they lack credibility as a witness. Prosecutors and investigators should, where possible and where it would assist the case, identify other evidence without placing all the reliance on the victim’s account to support and strengthen their account.
• Where it is a reasonable line of enquiry to obtain medical records and prosecutors consider they require disclosure within proceedings, this will engage the Article 8 right to privacy of the victim, so it is crucial that the police obtain the victim's informed consent to:
  • gain access to the records; and
  • enable disclosure, where appropriate, to take place.
• Prosecutors must satisfy themselves that consent to disclose the medical records has been obtained by the police from the person to whom the notes refer before any disclosure of material takes place.
• When obtaining consent, the victim should be informed by the police why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if they wish but must also be told about the possible consequences for the case outcome.

Relevant Caselaw / Links

Prosecutors should consult the Vulnerable Victims Toolkit which highlights common types of offender tactics and behaviours.

16. Victims may stay in or return to a relationship with suspects of abuse for many reasons and it can be very difficult or dangerous to leave, even if they want to

• Abuse often gets worse over time, and the victim can feel conflicted about the abuse they are experiencing and the professed love they might still feel for the suspect.
• Suspects may seek to isolate the victim from family and friends to control them, which makes it even more difficult for someone being abused to leave the relationship.
• Fear, lack of safe options, and the inability to survive economically prevent many victims from leaving relationships with suspects of abuse. Threats of harm, including death to the adult or child victim and/or any dependent, keep many abused people in abusive situations.
• The immigration status of victims can be a barrier, especially where they do not have recourse to public funds, or they are reliant on the suspect of abuse for their immigration status. Insecure immigration status may be used as a tool of coercion by a suspect of abuse.
• According to research by SafeLives, on average high-risk victims live with domestic abuse for 2.3 years and medium risk victims for 3 years before getting help.
• Prosecutors should consider the case with reference to the law and the facts. Simply because the victim stays with their abuser does not mean the impact of the abuse or the offending is in any way lessened - in fact, it can be common for victims to remain in a relationship with a suspect of abuse.

Relevant Caselaw / Links

Domestic Abuse Act 2021, section 3 Children as Victims of DA

17. The most dangerous time for a victim is often when they leave a relationship with a suspect of abuse.

• The most dangerous time for a victim is often when they attempt to leave the relationship, or when the abuser discovers that they have plans to leave. Support and safety needs for victims should be identified from the outset and continually considered throughout the life of a prosecution case. There may be a continuing threat to the victim's safety, and in the worst cases a threat to their life or the lives of others around them.

18. Children are victims of domestic abuse in their own right.

• The Domestic Abuse Act 2021 provides that a child (0-18 years old) who sees or hears, or experiences the effects of, domestic abuse and is related to the victim or the suspect is also to be regarded as a victim of domestic abuse.

Relevant Caselaw / Links

Domestic Abuse Act 2021, section 3 Children as Victims of DA

19. Prosecutors and investigators should consider protective measures for victims as soon as they report an incident.

• All charging decisions should be made speedily and with specific attention to the adult or child victims and any other dependants', safety in mind. Prosecutors should not delay charging decisions.
• Domestic Violence Protection Orders and Domestic Violence Protection Notices provide protection to victims by enabling the police and magistrates' courts to put in place protective measures. These can be implemented immediately after a domestic abuse incident and where there is insufficient evidence to charge a suspect and provide protection to a victim via bail conditions.

Relevant Caselaw / Links

DVPO and DVPN Guidance.

20. No one can consent to abuse

• It is not a defence to claim that a person consented to serious harm for the purpose of sexual gratification.
• The DA Act 2021 clarifies the law by restating, in statute, the broad legal principle established in the case of R v Brown, that a person cannot consent to actual bodily harm or to other more serious injury or, by extension, to their own death. The Act makes clear that:
  • a person is unable to consent to the infliction of harm that results in actual bodily harm or other more serious injury or, by extension, to their own death, for the purposes of obtaining sexual gratification.
  • a defendant is unable to rely on a victim's consent to the infliction of actual bodily harm, or more serious injury, in any context and this includes during sexual activity an exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI. This exception is in line with current case law.
  • the law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse

Relevant Caselaw / Links

R v Brown [1993] 2 W.L.R 556.

DA Act: Factsheets Consent to serious harm for sexual gratification not a defence.

21. Threats to share intimate photos and films are a criminal offence, whether the threat is carried out or not and whether they show or appear to show another person in an intimate state

• The DA Act 2021 extends the existing offence of disclosing private sexual photographs and films with intent to cause distress at section 33 of the Criminal Justice and Courts Act 2015 to include "threats" to disclose such materials. It constitutes a criminal offence within England and Wales. Such behaviour can be subject to the existing maximum penalty of two years' imprisonment, or a fine, or both.
• Note that Section 33 CJCA 2015 was repealed by section 189 of the Online Safety Act 2023 (OSA 2023). For offences committee on or after 30 January 2024, new offences are available mainly relating to sharing or threatening to share intimate photographs or film, including material that “appears” to show someone in an intimate state. New offences are under Section 66B(1)-(4) and Section 66C of the Sexual Offences Act 2003 [as inserted by Section 188 OSA 2023] – see the Communications Offences prosecution guidance for more information
• The CPS is required to prove that the threat to disclose a private sexual content was made, not whether the content exists; or, if it does exist, that it is in fact content which shows, or appears to show, a person in an intimate state. This is because it is the threat that is the offence and that the threat was made with the intention of causing alarm, distress or humiliation.
• The OSA 2023 extends the purpose of an intimate photo or film being shared to include obtaining sexual gratification. Offenders that share an intimate photo or film for this reason, whether for their own gratification or that of another person, may be entered onto the sex offenders register.
• If private sexual images or films do exist, it does not matter that the victim consented at the time they were taken.

There are helplines at the bottom of the crown prosecution service website page that different communities can get in contact with about anything that they may feel does concern them.