Taking your abuser to court
The Criminal Courts operate separately from the Civil Courts. Criminal Courts operate on different rules and procedures. They are designed to determine whether an individual (or a company) is guilty of a crime and to decide upon an appropriate punishment. The Criminal Courts generally do not award compensation to the victim of the crime.
Generally proceedings in the criminal courts are brought by the Crown Prosecution Service (The CPS) who pursue prosecutions after charges have been laid by the police. The Judge, together with a jury in the Crown Court, will hear evidence from the CPS and from the Defendant (the person accused of the crime) before determining that person’s innocence or guilt. If found guilty, the convicted person will then be sentenced by the judge.
For a full explanation including advice in detail download our guide.
Questions & Answers
Reporting the Crime to the Police:
In cases involving child abuse, the person who has been abused will be required to make an approach to the police as soon as possible, either themselves or through a parent, guardian or other interested party. The person who has been abused will be asked to make a Statement. One or more police officers will take a statement either at a police station or at the abused person’s home.
Most police authorities throughout the country have specialist officers who are trained in taking statements from children, people with learning disabilities or adults who have been subject to a sexual assault. These officers are usually based in a Child/Public Protection Unit. To find your local police station dial 101 from any phone.
In cases involving children or people with learning disabilities, the interview or series of interviews will be recorded for the added protection of the abused person.
Where the interviewee is considered vulnerable (young, old, or disabled) A parent or other appropriate adult will be present throughout the interview.
In other cases, the interview may be videod, tape-recorded, or a hand-written statement taken in a suitably relaxed environment. A typed statement or visual recording with a written summary is usually then produced and, if appropriate, signed by the person making the statement. This statement will then be used as evidence if a case is brought which proceeds to trial. Some police forces have better procedures than others for dealing with allegations of abuse.
Generally, a victim or witness will not be entitled to have a solicitor present with them at the police station but they can request a friend to accompany them. Solicitors are only required when a person is being investigated for committing a crime. Any child or person with a learning disability will require an appropriate adult to accompany them to the police station, or if they do not have one, the police will arrange for a social worker to attend.
Most police forces have a Child/Public Protection Unit, a Family Protection Unit or a Community Safety Unit. Some police forces such as the Metropolitan Police in London have introduced a Rape Chaperone Service. The Metropolitan Police Service state that they are ‘aware that rape is a sensitive and difficult crime to report, especially for men’. The introduction of the Male Chaperone Service in the Metropolitan Police Service area means that anyone wishing to report a rape can contact their local police station and ask to speak to a rape chaperone or have a rape chaperone visit them at home.
Rape chaperones are male and female police officers who are specially trained in working with rape victims. Rape chaperones are not trained counsellors and it is not their role to offer emotional support to victims. The Metropolitan Police Service however hope that ‘their knowledge and understanding will reduce some of the trauma of reporting the crime of rape’.
The role of the Metropolitan Police Service rape chaperone is to act as a sole point of contact between the victim and the Police Service. The rape chaperone will assist in:-
- explaining procedures to the victims;
- informing the victim about developments in their case;
- providing helpful information on appropriate support groups;
- making any necessary hospital appointments;
- feeding back information to the victim regarding the prosecution of the person accused of the rape.
Some police forces have SARCS (Sexual Assault Referral Centre) which are designed for victims of rape, and are designed as comfortable areas away from the police station where all the services such as forensics and questioning in a convivial setting takes place, so that the victim’s experience is as comfortable as possible. It avoids the victim travelling to different buildings when assisting the police prosecute an offender.
After a statement has been made, generally the person accused of the abuse will be arrested by the police and interviewed under caution. Free legal representation is available to the accused person in the police station. If the police consider that there is sufficient evidence against the accused person, they will be charged with an offence and a court date fixed when the Defendant will be required to attend before a Magistrate’s Court. Often, the police will take advice from the Crown Prosecution Service (the CPS: the Lawyers working on behalf of the State or the Crown) on the strength of the evidence available and the likelihood of the accused person being convicted in court.
Sometimes, the evidence from the person making the allegation is not supported by additional or corroborative evidence from another source, for example, a witness or from forensic sources, such as DNA evidence. In such circumstances, the Police and/or the CPS may take the decision not to charge the accused person with an offence. This can be extremely upsetting and disappointing to the person who had the courage to make the allegations of abuse in the first instance as this leads to a sense of injustice. The decision not to charge and prosecute a person is a difficult decision to take.
The criminal courts, when hearing a case, must be satisfied ‘beyond a reasonable doubt’ that an offence was committed if they are to convict a Defendant. This is called ‘the burden of proof’. The test is very strict in an attempt to avoid miscarriages of Justice where innocent people might be convicted on the basis of evidence which is questionable. The ultimate punishment for an offence is imprisonment. The evidence must be very strong if a court is to deprive someone of their liberty. Often therefore, if there is any weakness in the evidence against an accused person ,the Police or the CPS may take the decision at an early stage not to bring any prosecution.
The Crown Prosecution Service (‘CPS’) is an independent prosecuting authority. Comprising solicitors and barristers, the CPS take decisions about criminal cases based upon the strength of the evidence. The CPS lawyer will make an assessment of the case and consider the public interest.
The CPS does not act directly on behalf of individual victims or represent them in court in criminal proceedings. The CPS policy is to take decisions reflecting the overall public interest rather than the particular interest of an individual person. The CPS in their policy statement indicate, “nevertheless, the interests of the victim are very important when we make decisions”.
The CPS have made a public declaration of their principles in a statement of purpose and values, promising to “show sensitivity and understanding to victims and witnesses”.
The code for Crown Prosecutors provides specifically that the CPS should consider the extent of the loss or the harm suffered by the victim, judged according to the circumstances of the victim in question. The more serious a case is, the more likely it is that a prosecution will be required in the public interest. The vast majority of sexual abuse cases fall into this category. It is therefore important for the CPS to know how the crime has affected the victim.
Once the police have conducted their enquiries, they will send a file of information to the CPS. The file will contain information about victims and witnesses. This will help the CPS lawyer to decide whether a case should proceed to prosecution.
At court, the victim of the crime will naturally have an extremely important interest in the case. The CPS have indicated that they will “always try to help victims and witnesses at court by giving appropriate and useful information, although [our] other duties may constrain the extent to which this is possible”.
The CPS also state, “The criminal justice system depends on the victims and witnesses to ensure that cases are dealt with properly at court. We know that going to court may sometimes be a difficult experience…the CPS is committed to doing all we can to help”.
If the victim/complainant is not satisfied with the decision not to prosecute their abuser they have a right to ask for the decision to be reviewed by someone other than the decision maker. Sometimes the decision is reversed.
The Criminal Courts are divided into two main categories. The Magistrates’ Court and the Crown Court. All criminal charges, including child abuse charges will begin in the Magistrates’ Court and will ultimately be transferred to the Crown Court.
The Magistrates’ Court: Where an accused person is charged with an offence, usually there will initially be a number of short hearings in a Magistrates’ Court over a period of time to deal with procedural and administrative matters.
The Crown Court: After the initial Magistrates’ Court hearings, the Defendant will then usually be ‘committed’ or referred to the Crown Court for trial. If the accused person admits the charges, they will be sentenced by the Crown Court Judge, without the victim needing to attend Court to give evidence. If the Defendant denies the charges, the CPS will be required to present the evidence to the Court at a Trial. It can often be several months from the date when the accused is first charged with the offence at the police station before the trial actually takes place in the Crown Court.
A Court requires evidence before it can determine the issues in dispute. The CPS will be required to present evidence to the Judge and Jury.
Evidence can be in the form of ‘oral’ evidence, that is, where a person speaks to the court in the witness box; written evidence, for example in the form of a statement, document or letter; ‘forensic’ evidence, such as DNA test results; or other evidence, for example an object such as a knife.
The person making the allegation of the abuse (the victim of the crime) will usually be the person who will provide the court with the first-hand evidence. In the criminal court, the victim of the crime is not a ‘party’ to the court proceedings, unlike in the civil court. Instead, the victim is a ‘witness’ who will give evidence on behalf of the prosecution against the Defendant. The witness will not be entitled to have their own solicitor or barrister. The CPS lawyer presents the victims evidence on behalf of the state.
On considering all of the evidence, the Court must be satisfied beyond a reasonable doubt that the Defendant is guilty of the offence with which he has been charged, if he is to be convicted. This is the ‘burden of proof’. The burden of proof is higher in a criminal court than in a civil court.
The role of the victim of the crime is to act as a witness to give evidence to the court; to tell the court what happened.
The victim will usually be required to attend court if the matter proceeds to trial and stand in the witness box. The CPS lawyer (a barrister or a solicitor) will ask the witness questions based upon their witness statement so as to tell the Court what happened, thereby presenting the evidence.
A defendant has the right to challenge any evidence put forward by the CPS. To do this, the Defendant’s lawyer will ask the witness questions to try to discredit or attack the witness’s statement. This is called cross-examination.
The judge may also wish to ask the witness questions to clarify any parts of the evidence.
A victim of abuse is considered a vulnerable adult in the same way as a child or a person with a learning disability. They are entitled to special measures
The witness may be asked questions by the CPS lawyer and cross-examined by the defence lawyer. Additionally the witness can choose to give evidence in Court but behind a screen. If evidence is given to the police by way of a recorded interview on camera, then this can form the basis of the victim’s evidence, so as to avoid the need for them to give their evidence all over again. This facility has now been extended to include all victims of abuse. which include the giving of their evidence to the court by way of a video link with the court while the witness is in a separate room in the court building. There are other provisions. For more detail go to http://www.cps.gov.uk/legal/s_to_u/special_measures/
This procedure is intended to protect the victim as much as possible and to minimise as far as is possible the trauma of giving evidence in court while at the same time allowing the defendant his right to challenge the evidence.
On hearing all of the evidence, if the jury finds the Defendant to be guilty of the offence with which he was charged, the judge will fix the sentence. This may be carried out at a separate hearing. The sentence is likely to include a prison sentence.
No. the role of the criminal court is to determine whether a person has committed an offence and to punish them if they have. The court will not generally award compensation to the victim of the crime.
A separate scheme for compensating victims of crime may be available under the Criminal Injuries Compensation Scheme. See the Guide to the Criminal Injuries Compensation Scheme by clicking here.
The victim of the crime may also be entitled to sue for compensation in the civil courts. See the guide to the Civil Court Procedure by clicking here.
You have been asked to be a witness because you have something to say (‘evidence’) which might help a person who is making a claim for compensation in Court, disputing a claim for compensation or in connection with criminal charges against a person.
You may be asked to be a witness by a person involved in the case or by their solicitor, for example because you may have seen an incident take place or had some involvement before or after the incident which might have relevance to the case. In this case, you will be a ‘witness of fact’.
If you have special qualifications, knowledge or skills and can give a professional opinion, for example about injuries, then you will be ‘an expert witness’.
If you are asked to be a witness of fact, you can refuse, however, the party who asks you or their solicitor can take steps to make you come to Court to act as their witness. At the request of a party or their solicitor, the Court can issue a Witness Summons telling you that you must go to Court to act as a witness and informing you when and where to attend. If you do not go to Court when you are told, you will be in ‘contempt of Court’ and can be fined up to £1,000.
You can apply to have the Witness Summons withdrawn if it is impossible for you to go to Court at the time and date specified. Always try to tell the party or their solicitor as soon as possible if you have something pre-arranged, such as a holiday or hospital appointment which might affect the dates when you can go to Court.
Always try to contact the party or their solicitor to discuss any arrangements as they may be able to help with any difficulties you may have. If they cannot help, you may have to make a special application to the Court in plenty of time prior to the Court hearing in respect of which you have been asked to attend as a witness. The Judge may then withdraw the Witness Summons if appropriate.
Even if you have agreed to be a witness, you might still receive a Witness Summons from the party’s solicitor. You could also ask to have a Witness Summons sent to you for example, you might find it helpful to show to your employer when you ask for time off work to attend the Court hearing.
In most cases, you will already have been required to give a written Witness Statement. The Witness Statement should usually be in your own words and should contain:-
- your full name, address and occupation;
- the details of the evidence you intend to give at Court;
- a statement confirming that the facts set out in the Witness Statement are true, followed by your signature.
At the Court hearing, the Judge will decide whether it will be necessary for you to give spoken evidence in addition to your written witness evidence or whether your written evidence will be sufficient.
Be very clear about the time, date and place of the Court hearing and know exactly where the Court is. Every Court has its own leaflet which will tell you where the Court is and whether it has any special facilities. The Court will send you a leaflet if you ask it to do so.
If you have a disability which makes going to Court difficult or communication at Court difficult, you should contact in advance the person who asked you to go to Court so that they fully understand any difficulties you might have. You should also contact the Customer Services Officer at the Court in question. Alternatively, you can contact The Court Service Disability Helpline on 0800 3583506 between 9.00 am and 5.00 pm Monday to Friday. Calls to this number are free. If you are deaf or hard of hearing, you can use the mini-com service on 0191 4781476.
Before going to Court, make sure that you know what documents or papers you will need to take to court and take all the papers about the case that you need. Make sure that they are in the correct order and that you can refer to them quickly and easily.
Courts are usually very formal and you should dress appropriately.
The length of time you spend at Court can often be longer than you might first had thought. There can often be delays and you should be prepared for this. You might ask a friend to go with you to keep you company or you should take a book or something to keep you occupied while you are there.
It is always a good idea to visit the Court before the day when you are due to attend as a witness if possible to see where the hearing will take place. Having a better idea of what the Court looks like both from the outside and on the inside will usually help to take away any fears you might have. You can ask a member of the Court staff to show you where you will give your evidence. It is of course best to arrange this with the Court in advance in order that they can arrange a suitable time.
Some solicitors might want you to visit their office before going to Court in order that you can discuss the evidence you will give at Court and to give you an idea of the type of questions you might be asked at the Court hearing.
Always arrive in good time. When you arrive at Court, report to the receptionist or the Court usher to tell them that you have arrived and the name of the case you are involved in. The Court usher will usually be wearing a black gown. A note will be made that you have arrived and this will make it easier for the other people involved in the case to try to locate you, possibly by tannoying for you on the loud speaker, so listen out for this.
You will normally find a list of cases that are being heard in the Court on that day close to the waiting area. The list will tell you which Court your case will be heard in and will tell you the name of the Judge. This can be subject to change, so keep a regular check on this information.
If you have to leave the waiting area for any reason, always tell the Court usher or another person involved in the case so that you can be found when needed.
Do not be surprised if there may be last minute changes whilst at Court. For example, you might be told that the case has been resolved at the last moment and that the hearing does not need to take place. Sometimes, the hearing might need to be adjourned without you giving evidence or sometimes, you might be told that your evidence might have to be delayed until later in the day or to another day.
When it is your turn to give evidence, the Court usher will usually call out your name and you will be shown to the witness box. You should stand up, or, if you find standing difficult, you can ask to sit down.
Usually witnesses are allowed to sit in Court before they give evidence and remain in Court after they have given evidence. Sometimes however, either of the parties in the case can ask the Judge that a witness stays outside of the Court until it is their turn to give their evidence. If this happens and the Judge agrees, you will be told and will be shown where to wait until the usher calls you into the hearing.
After you have entered the witness box, you will be asked to take an oath, that is, to swear that what you are about to say in Court is the truth. An oath is taken either on the bible or another holy book and you will be given a card to read or told by the usher what to say when taking the oath. If you prefer not to swear on a holy book, you can give a promise to the Court to tell the truth (an affirmation). It will help if you tell the usher that you want to ‘affirm’ or on which particular holy book you wish to be sworn <u>before</u> you go to the Court room.
The solicitor or barrister who has asked you to go to Court will first ask you questions about your Witness Statement. Then after you have been asked questions by that solicitor or barrister, the solicitor or barrister for the opposing party will usually ask you questions to verify your statement. This is called ‘cross-examination’. The Judge might also want to ask you some questions.
The solicitor will usually wear a gown and a barrister will usually wear a wig and gown. The Judge will also usually wear a wig and Court robes.
There are different types of Judge depending on the type of case you are involved in. The Judges are addressed according to which type of Judge they are.
- In the County Court, a District Judge is addressed as ‘Sir’ or ‘Madam’.
- A ‘Circuit Judge’ in the County Court is addressed as ‘Your Honour’.
- A High Court Judge is addressed as ‘My Lord’ or ‘My Lady’.
Ask a member of the Court staff or a party’s solicitor if you are unsure which type of Judge will be hearing your case or how to address the Judge.
When giving your evidence, remember to speak clearly, giving your answers to the Judge and not to the person who asks the questions. Try always to remain calm and do not get annoyed if you are asked any questions which you think are unfair. If you do not understand a question, or could not hear what was said, do not be afraid to say so. If you need to refer to any papers, you must ask the Judge if you may do so.
The length of time you are in the witness box will depend upon what questions you are being asked. This could be anything from a few minutes to a few hours.
When you have given your evidence, you will be told that you are ‘released’ and are free to leave the hearing. You should only leave the Court building if you are released before the hearing of the case is finished.
Sometimes, if you are released for example when there is a lunch break or other break, you might be asked to come back later that day or another day. You will be told by the Judge not to speak to anyone about the case until after you have finished giving your evidence.
The solicitor who asks you to be a witness may arrange to pay a contribution towards:-
- Your costs in travelling to and from the Court.
- A reasonable contribution to compensate you for any income you may lose when going to Court.
- The cost of over-night accommodation if this is necessary.
The cost that can be paid in relation to expenses however are only a contribution and some cases are fixed to a maximum level. They would rarely fully compensate you for any loss of wages.
If you are asked to go to Court, always be prepared. Ask the solicitor or the Court in advance for full details including:-
- the time, date and place of the Court hearing;
- a map showing how to get to the Court;
- details of public transport and any car parks near to the Court;
- when the Court building is open;
- details of the Court facilities including food and drinks, telephone and separate waiting areas.
Also, if you have made a statement, make sure you read it before you go in order to refresh your memory. If you cannot find your copy, and your solicitor to send you one.
Q: What Should be in My Expert Report?
Court Rules set out specific requirements for experts’ reports. You have a duty to the Court to help the Court with all matters within your expertise. Your duty to the Court overrides any obligation you might have to the party instructing you or paying for your report.
Your report should always be addressed to the Court and not to the party who instructed you, or asked you to prepare your report.
Your report must set out details of:-
- your name and qualifications;
- any documents or other material on which you relied in making the report;
- any person who carried out any test or experiment mentioned in the report, including their qualifications and whether it was carried out under your supervision;
- contain a summary of any range of opinion given in the report and reasons for your own opinion;
- a statement that you understand your duty to the Court and that you have complied with that duty;
- a summary of any written and oral instructions given to you by the party asking for the report;
- a signed Statement of Truth verifying the contents of the report, that is ‘I believe that the facts I have stated in this report are true and that the opinions I have expressed are true’ followed by your signature.
If you knowingly give false information in your report and you have verified it with a Statement of Truth, you might be liable to a fine or imprisonment.
Sometimes the opposing party in a case might agree a particular report to be used in evidence. If this happens, you might not have to go to the Court hearing. You will be told if you do not have to go to Court. The general rule is that your attendance at Court will not be required and your evidence will be limited to your written report. If you do have to give evidence at Court, the person asking for your report will tell you when and where to attend or send you a Witness Summons.
Q: Can I Refuse to be an Expert Witness?
If you are asked to be an expert witness, you must decide whether you can spare the time from your work or business to prepare a report and perhaps go to Court.
You should consider these matters before agreeing to prepare any report. If you agree to prepare a report and are asked to go to Court, you will be obliged to do so and might be summoned to attend Court.
As an expert, you will be entitled to a reasonable amount to compensate you for any income that you may lose when going to Court and for your expenses in travelling to Court. This should be agreed in advance with the solicitor instructing you.