This essay hopes to identify the ways in which the British court system has been developed over the past two decades, and in particular how it hopes to better reflect the needs of victims of domestic violence. The essay will critically explore whether the hopes of Lord Falconer have been fulfilled with the implementation of the specialist domestic violence courts. The treatment of domestic abuse victims within the court system has, and still is a contentious issue for all involved in the criminal justice system.
Domestic abuse can be identified as being an incident or threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality. (ACPO. , 2004:5) as cited by (Tapley. , 2007 . p 88) The very nature of domestic abuse means that both victim and perpetrator are known to each other, not only known, but have at some point been in an intimate relationship of some kind.
It is no surprise then to assume that the reporting and prosecuting of domestic abuse is exceptionally difficult for victims. This is reflected within research which indicates that domestic violence is acutely under reported. (Wykes, M and Welsh, K 2008. ,p2). Regardless of this, current research estimates that domestic violence still accounts for 16% of all violent crime and claims the lives of two women each week. Worryingly it is also recorded that only 5 per cent of recorded cases of domestic violence end in conviction ( wykes & welsh).
During the recent decade there have been many changes in the way that Britain has viewed and dealt with domestic abuse. Feminist thinking during the 1970,s and 1980,s began to reveal the extent of violence that was being used against women and not being prosecuted. The feminist movement put pressure on the government to introduce new policies and initiatives that sought to make the criminal justice system more ‘victim focused’. There was hope that in doing so victims of domestic abuse would come forward and report such crimes.
Home Office led research ((Home Office 200b) as cited by (Tapley,. 2007. p90 )and the implementation of the Victims charter (p 245 Community Justice Willand) in the 1990’s led to the Crown Prosecution Service improving their own procedures to offer a greater level of support and service to victims (Tapley,. 2007. p90 ). Their research led to the publication of new guidance for the prosecution of domestic abuse cases. One of the recommendations made by this guidance was the use of specialist Domestic Violence courts. (Cook et al,. 2004 ).
The objectives of UK Specialist Domestic Abuse courts were similar to the earlier examples in the US and Canada; to’intervene early in dometic violence situations, effectively prosecute domesticate violence cases, provide support to victims and hold offenders accountable’ (Ministry of the Attorney General, 2000: 4,) as cited by (Eley, 2005. p 115). The government hoped, by introducing the specialist DV Courts, to reduce the secondary victimisation to victims- that is victimisation from the criminal justice process itself (Maguire,. M . 2002. p87).
Victims were often left feeling re-victimised after the cross examination stage of a trial. Often cross examination can be upsetting and confusing and can be an intimidating experience for victims of abuse. Judges do have the power to vito certain questions however they are unlikely to do so as ‘trashing, trapping and tripping’ are all part of proving and disapproving cases (McBarnet. , 1983) as cited in (Sanders, A. &Young,R. p735).
Although this form of cross examination may be un-receptive to Victims needs, the UK in adopting an adversarial court system, must allow a trial whereby the accused can defend themselves. The introduction of the specialist DV Courts is thus not to change the court process, but to change the way victims are treated within it. One of the main issues Victims face during the criminal justice process is the fear of facing their abuser in court. This issue has been considered in the implementation of specialist DV courts where the Victims evidence is crucial.
Familiarisation with the court procedures is just one way in which victims and witnesses are being prepared for court. One development hoping to better support domestic violence victims throughout the court process was the introduction of Independent Domestic Violence Advocates (IDVA) working within court. The role of an IDVA, according to Cook et al acts as a liason, buffer and a contact (Cook et al,. 2004) between the victim and the court.
Early research into the effectiveness of IDVA’s is encouraging; ‘A recent evaluation of the IDVA service in Glasgow showed that the local co-ordinated response between police, courts and the IDVAs resulted in approximately 70% of victims suffering neither physical nor emotional abuse at the end of support from the IDVA'(Home Office,. 2007. p7). The services success however may lead to its main criticsm-it is being overstretched and the quality of service to victims is being lost ‘The average number of referrals per practitioner per year is over 300.
This flood of referrals is resulting in an unsustainably high average caseload of over 150 cases per IDVA which we fear must impact on the quality of service that can be offered’ (Home Office,. 2007. p7). Another way in which the specialist DV courts have changed to become further receptive to victims needs is by offering the use of Special measures throughout the trial.
The home office report ‘Speaking up for Justice’ (Home Office,. 998) has influenced the implementation of special measures to assist vulnerable and intimidated adult witnesses; Special measures were available for child witnesses and respondents believed that the rolling out of these for adult victims of domestic violence would make a significant impact on their willingness to testify. (Cook et al,. 2004) As mentioned previously, victims may feel unable to come face to face with their abuser at court and thus may benefit from the use of measures such as Video Link or Screens.
The benefits of ‘Special Measures’ have been recognised by numerous criminal justice professionals who argue the use of special measures improves confidence in victims and witnesses (Hamlyn et al. , 2004. ,) as cited by (Tapley,. 2007. p94) The protection and support of Victims after sentencing has also been reviewed and in 2003 the Home Office published the consultation paper ‘Safety and Justice’ (Home Office,. 1998). The paper stated that “the Government’s strategy for tackling is based on three elements: prevention, protection, justice, and support”(Home Office,. 003 p7).
This led to the passing of the Domestic Violence, Crime and Victims Act 2004 which promised to provide better protection and support for victims of crime, including better access to health, housing and financial support. ( Winstone, J. & Pakes, F. 2005 p 253)Victims can enter the court process with the understanding that their needs will be considered throughout the sentence and the risk of them coming to harm will be monitored on a multiagency level under the newly implemented Multi Agency Risk Assessment Conferences.
Some may argue that addressing the needs of victims and witnesses is now seen as the fundamental objective within the criminal justice system; indeed it was outlined as such by Tony Blair in his foreword to ‘Cutting Crime, Delivering Justice: A strategic Plan for Criminal Justice 2004-2008’ (Office of criminal justice reform 2004: 5) as cited by (Winstone, J. & Pakes, F. 2005 p249). Some may argue however that in order for the changes to make a difference in practice aswell as on paper there needs to be a shift in the professional culture and responsibility taken by practioners. (Tapley,. 007. p94).
One example of how rhetoric and reality differ is in the implementation of victim impact statements. We may criticise the use of Victim Impact statement for it having been ‘grafted’ on to an adversarial framework; victims are only asked to make a Victim Impact Statement after a charge has been made, this could be criticised as it is sometimes the decision making in relation to the charge itself which the victim has most interest in (Sanders,. A & Young,. R. 2005. p 747). Regardless of this many professionals point to their value in helping victims to reach emotional closure.. nd offering pertinent information for the conditions attached to the final sentence'(Schuster, M. 2006).
The changes to the criminal justice system by way of specialist domestic violence courts was researched extensively by Cook et al in 2004. Cook (2004) stated that the ‘notable and positive benefits of Specialist Domestic Violence Courts are that Victim participation and satisfaction is improved…. and thus public confidence in the CJS is increased’. By all accounts Cook’s evaluation would suggest that the wishes of Lord Falconer had been put into practice- justice was being done, and being seen to be done.
There are however some criticisms of the changes to DV courts. Some research suggests that whilst attitudes have changed in theory, practice still reflects patriarchal values. (Kennedy. , 2005) as cited by (Tapley,. 2007. p87). One report re-confirms this belief when it found that ‘women believed that the masculine court culture was a barrier to the effective and fair treatment of domestic violence cases’ (Taylor & Browne. , 2008. p225) This, some would argue, is evidenced by the lenient sentences being given to male perpetrators of domestic violence.
Research has repeatedly revealed that in the past few perpetrators were prosecuted, if they were charged it was often with a crime of a lesser seriousness (Davis, G & Cretney, A. 1996). Although there is an emerging greater consciousness of domestic violence issues, it could argued that the changes in leglislation are not, in themselves sufficient in being receptive to Victims needs. Although much has been done to offer improved services to heterosexual relationships it seems there is still a lot that needs to improve for those who may not at first instance be seen as ‘ideal victims’ (Goodey. ,J. 2005).
An example of this may be where the man is the victim and the women the perpetrator. Male victims are often not taken as seriously as their femal counterparts (BBC. 2006). Male victims are have alternative needs to women which must be responded to in a different ways; there must be a development of male services if male victims are to be understood and supported (Newborn et al 2002) as cited by (Tapley,. 2007. P89). In conclusion we may argue that although the criminal justice system has been much enhanced by recent leglislation it still displays many pitfalls in its accessiblity to victims of domestic abuse.
The limitations of working inside an adversarial system mean that victims must undergo rigorous cross examinations and questioning. Although there are measures in place to offer support for women ( in the form of IDVA’s) the service seems to be stretched to breaking point and as a result is spreading itself thin. What’s more, the work of the IDVA is aimed at working with heterosexual females and as of yet there is little specialist support offered to LGBT or Male victims of DV. In order for the system to improve, the net of support must be cast far wider than that of the ‘ideal victim’.