by Harriet Wistrich
As I have identified in the introduction to our manifesto, one of the key problems with the ability of our criminal justice system to tackle violence against women is not the absence of good laws but the failure to implement them. That is why the key objective of the Centre for Women’s justice is to hold the state to account. In order to do this effectively, we need each of the criminal justice agencies to have meaningful complaints and accountability systems, methods for making representations to alter decisions and, amenability to challenge by litigation – usually judicial review or civil claims for damages.
Last month CWJ, together with the campaign group ‘We Can’t Consent To This’, prepared evidence to intervene in a criminal appeal court hearing to consider whether the prison sentence imposed on Sam Pybus of four years and eight months for the manslaughter of Sophie Moss was unduly lenient. Sophie Moss had died as a result of ‘prolonged pressure to the neck’ inflicted by Pybus. The court which sentenced him at trial and the Court of Appeal which rejected the Attorney General’s appeal and our intervention, both accepted Pybus’ evidence that Sophie “enjoyed” being strangled. His evidence was supported by that of another man who had sex with her and who said the same. Of course Sophie could not contradict that account. More significantly, other witnesses, including Sophie’s long term ex-partner and the father of her children said she had never shown an interest in being strangled. Additionally, Pybus’ ex-wife and another former girlfriend both provided evidence that he could be violent during sex.
The approach of the police, prosecution and judges in this case conflicts sharply with the way many women who kill violent partners are treated, as we evidenced in our report on Women who Kill. Take, for instance, the recent case of Farieissia Martin (‘Fri’) who was convicted originally of the murder of her violent boyfriend, Kyle Farrell. There had been a previous history of coercive control including serious sexual violence from Farrell. On the night of the homicide, during an angry confrontation, Farrell attempted to strangle Fri twice, before she grabbed a kitchen knife and fatally stabbed him. Despite these circumstances, a jury convicted Fri of murder in 2015. I subsequently took on her case and we obtained compelling psychiatric and psychological evidence showing that Fri was suffering post-traumatic stress disorder as a result of the violence she had been subjected to. That disorder would have made her hyper vigilant and explained a loss of control that led to the stabbing. The CPS obtained their own evidence which largely agreed with this defence evidence. The Court of Appeal accepted that fresh evidence and quashed her conviction, but ordered a re-trial. We made repeated representations to the prosecution that Fri would be willing to plead guilty to manslaughter (to avoid the risk a jury might reconvict her of murder). The prosecution insisted that Fri should be re-tried for murder despite this compelling evidence and willingness to plead to manslaughter. At the re-trial, just before the jury was sworn in, the prosecution accepted a plea of guilty to unlawful act manslaughter and the judge then sentenced her to ten years imprisonment.
The contrast in the approach of the police, prosecution and judges to these two cases illustrates just how far we still need to travel before justice is delivered with any sensitivity or understanding of the context of male violence towards women.
So how can these attitudes and approaches be challenged?
In Fri Martin’s case, as in others we have dealt with where women are prosecuted for crimes only committed because they were victims of domestic violence, the prosecution took little notice of detailed representations. There is a lack of meaningful mechanisms for challenging CPS decisions to proceed with a prosecution. If the CPS don’t respond helpfully to representations, the only mechanism of challenge may be judicial review which is extremely difficult to win as you are usually required to show the decision was completely irrational.
On the other side of the coin, where prosecutors decide not to charge a case, which happens in the vast majority of rape cases and most other forms of violence against women, there is now a victim’s right of review. But it is not easy to challenge a decision without access to all the evidence. Poor VRR decisions can be challenged by judicial review, but judges are extremely reluctant to criticise a decision taken by the CPS, as the view is that any interference in the discretion of ‘experienced lawyers’ should be avoided unless there is a clear procedural error. In the mammoth case we brought against the DPP regarding the collapse in the prosecution of rape, we presented detailed evidence to support our case which was disputed by the DPP. The Court of Appeal, in dismissing our case, concluded that where there is a dispute of fact, the DPP’s version should be preferred.
If CPS decisions and actions are difficult to challenge, the comments and views of judges are even more hard to reach. Challenging judges in appeals can be done if they got the law wrong but if they make comments or show attitudes which illustrate ignorance around the reality of male violence, there is rarely anything that can be done.
Whilst the actions of the police are more amenable to challenges through accountability mechanisms (in particular the complaints system), many have little faith where it is the police investigating themselves. Even where complaints are upheld (in approximately 10% of cases), we see officers often remaining in post even for sexual violations - as discussed last week.
And what of the court system itself? Last week, an Independent Sexual Violence Advisor (ISVA) from one of the Rape Crisis organisations we work with, wrote to us about one of the women she is supporting who has had to wait 3 and a half years for the trial of her rapist to be listed after repeat adjournments. She also tells me “a near daily issue I face is no one seemingly responsible for updating at interim court hearings, witness Care, CPS, police all in the dark. Court listings drop the cases and no one is told why and no new date is set, or it is booked and dopped again.”
The buck stops with the government and those responsible for leading all the criminal justice institutions.
The ultimate remedies sometimes lie with legal action, either judicial review or civil actions, in particular Human Rights Act (HRA) claims. However, legal actions are extremely expensive and carry a huge costs risk (if you lose you have to pay the winners’ costs) and legal aid is only available for people on extremely low incomes. Furthermore, the current government have proposals to restrict the reach of judicial review and curtail remedies under the HRA. The true extent of such restrictions won't be clear until the government publishes the final Independent Human Rights Act Review report.