Is there a need to protect the innocent who are falsely accused of domestic violence?

When a person is accused of domestic violence, the repercussions can be devastating in terms of reputation, the potential professional consequences as well as the personal implications, such as being removed from the family home.

Having represented individuals including solicitors, doctors and persons who are accused of domestic violence in the public eye, I am only too aware of the effects the proceedings have on these clients. The individual making the complaint is offered significant protection by the Police, the Courts and the Government; the Government has recently launched the first part of £40m to pledge to support domestic abuse victims, with a £20m initiative that will ensure councils offer accommodation to victims fleeing abusive partners. It is absolutely and understandable right that these people are offered protection. It has taken a long time to get to a point whereby domestic violence is taken seriously by society, especially when you consider that marital rape was only made a crime in 1991. I am not suggesting this is not an important shift of resources and recognition of growing area of criminality. On the other hand, what about those individuals who are falsely accused of such crimes, what protection is offered to them?

It is a nightmare for a person falsely accused of domestic violence. It starts with the trauma of first being arrested; this may involve the police attending their home and leading them out in front of their partner and children to answer questions at a police station, or attending their place of work and humiliating them in front of their colleagues. This, in turn, can lead to the added pressure of the involvement of social services. Suddenly the individual is  not only made to explain and justify all aspects of their relationship with their partner but also their ability to raise a child as a father or mother.

It is recognised by family lawyers that allegations of assault can, in certain circumstances, dramatically alter both the financial and related settlement ordered. The family courts recognise the timing of these allegations can, in certain circumstances, appear divisive and without a real evidential basis.

In England and Wales, the media has the freedom to report that a person has been arrested and interviewed, at a time when the full extent of the evidence is often unclear; this does not prevent the powerful and sometimes highly prejudicial media outlet publishing details of the allegation and referring to information and opinion provided by an unknown ‘source’.  The police investigation can continue for many months which means that only those close to the falsely accused will know the truth and everyone else is left with one side of the story and the rumour mill has begun.

When the Crown Prosecution Service (‘CPS’) authorises a decision to pursue charges against someone falsely accused, then once again the individual is dragged back in the spotlight with journalists, often making their presence felt literally by photographing them outside court and then by packing out the often small public gallery in the Magistrates’ Court for when they appear for the first time  in court and often throughout the trial itself. The allegation is played out in the public eye; employers, clients and customers may start to distance themselves, concerned that the bad publicity will reflect badly on their business and the perception other people may have of their reputable organisation. Even today, people still have a tendency to believe that the charges would not be brought against a person without there being some truth to them, after all, surely “There’s no smoke without fire”.

The number of domestic violence cases being prosecuted by the CPS is rising. This year the CPS reported that in 2015/2016 there had been an 18.3% increase in allegations of rape, domestic abuse and sexual assault abuse ending in prosecutions, this means that in this year there were 117,568 cases prosecuted. Of these there were more than 100,000 domestic abuse cases prosecuted and over 75,000 convictions, the highest volume ever recorded.  This leaves at least 25,000 people acquitted of an allegation of domestic violence and this does not account for those people who were arrested but then not subject to prosecution. Should one assume that as it is a smaller percentage than those convicted that those individuals do not matter?  They have had their name dragged through the mud, potentially had their relationship with their children severely affected, suffered serious damage to their reputation and lost their job or business.  In some cases where we have defended people charged with allegations of domestic violence which have been brought before the Courts, the clients have then faced disciplinary proceedings and, on occasion, suspension whilst the outcome of a trial is awaited. These professionals are not entitled to legal aid, and changes to defence cost orders in recent years mean they cannot recover their full costs, so they are losing thousands of pounds which have been used to defend themselves regardless of the verdict. What protection do they have? The answer is none. This area of the law needs to change but where does the responsibility for this change lie?

I believe that the only answer can be that it lies with our legislators and the solution is anonymity.  Unlike allegations of rape and sexual assault outside of a private relationship, allegations of domestic violence, whether true or not, are normally born out of an isolated relationship.  The argument for anonymity in the aforementioned scenarios is a separate issue and one which is dealt with as so.  In cases of domestic violence, the damage to a person’s reputation is already done the moment a sometimes malicious and fabricated allegation is made public. The media is currently trusted to report matters in a fair way but this is not always the case. They all too often only report one side, even when the accused in court is putting across their side of the story; it is rarely reported as such.

Where does a fair compromise lie?

By only allowing cases to be reported once they have concluded, it is hoped that this should restrict the unnecessary impact on innocent lives.  An innocent person accused of these allegations and then acquitted has to rebuild their confidence in the justice system and those who surround them. They then also have to prove to the world that they were wrongly accused; it can take many months and years for them to rebuild their reputation.

So what can be done in the meantime?

While we wait for the law to catch up and offer these people protection?  The answer has to be for these individuals to have a proactive approach right from the start, when the allegation is first made.  They need to work with their legal team to illustrate to the police that the allegations are fictitious and hopefully prevent the matter spiralling into a situation whereby they find themselves charged and in court and, significantly, to impress upon the police the need for the utmost confidentiality to be maintained.  When a person is falsely accused, they cannot always foresee how the investigation into their marriage or relationship could possibly ever result in a day in court and they can have a tendency to not want to spend large sums of money at this stage for something which they know to be ludicrous. They need to be advised that unfortunately, this is not a situation where the outcome can be controlled or guaranteed.  There has previously been a culture to withhold the evidence available from  the prosecuting authorities  at the outset, but in these cases it can be in the client’s best interests to demonstrate the evidential deficiencies at an early stage and  limit the damage that can be done. I do not see how what else we can do until the Government take an active interest in protecting those who are falsely accused.

Marie Bourke, associate solicitor in the fraud and criminal litigation team at Russell-Cooke

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