On 18 January 2018, Steven Saunders was sentenced to 18 months imprisonment following his trial for coercive and controlling behaviour in an intimate or family relationship.

Whilst such a sentence is no longer uncommon, this is the first reported case of a conviction in a “victimless prosecution” for controlling and coercive behaviour.

What is “victimless prosecution”?

A “victimless prosecution” is one where no evidence is directly adduced from the complainant. This is only likely to take place where a victim is a) unwilling to give evidence, and b) it is in the public interest to continue with the prosecution without the victim. One of the most common public interest factors is the fact that a successful prosecution is likely to protect the victim from further abuse.

Controlling and coercive behaviour occurs when a person repeatedly or continuously engages in behaviour towards another person, to whom they are personally connected, that is controlling or coercive, and that behaviour has a serious effect on the victim by causing them:

  • to fear violence will be used against them on at least two occasions; or
  • serious alarm or distress which has a substantial adverse effect on their usual day to day activities.

The offence is one that often takes places behind closed doors and can be particularly egregious as a result of the psychological harm caused.

Consequently, this is an offence where the actual behaviour is often only directly witnessed by the complainant.

How does a “victimless prosecution” take place?

In this particular case, the prosecution evidence is reported to have come from the victim’s medical professionals in the form of “hearsay”.

“Hearsay” is defined by the Criminal Justice Act 2003 (the “CJA 2003”) as “a statement not made in oral evidence in the proceedings” that is “evidence of any matter stated”.

In practice, this means:

  • an oral or written statement;
  • made by a person who is not a witness;
  • that is given in evidence by a third party;
  • that is relied upon as proof of the original statement.

In the Saunders trial, medical professionals (i.e. third parties) were able to give evidence of the defendant’s conduct that had been relayed to them by his victim.

An application is required to adduce such evidence but it is not the only evidence that can be relied upon, which can include:

Complainant Hearsay

In circumstances where an initial complaint is made to the police, and the victim later withdraws their statement, the prosecution may also apply to adduce such statement as “hearsay”.

Admissibility of Hearsay

In both of the above scenarios, “hearsay” will only be introduced if:

  • the prosecution and defence agree to the admission of the evidence;
  • it is in the interest of justice to do so;
  • one of a number of common law exceptions apply; or
  • there is a statutory provision under the CJA 2003 making the hearsay statement admissible.

Generally speaking, the factors the Court will need to consider are:

  • the statement’s probative value to a matter in issue;
  • the circumstances in which the statement was made;
  • the reliability of the maker of the statement;
  • the reliability of the evidence of the making of the statement itself;
  • whether oral evidence of it can be given; and
  • if oral evidence cannot be given, why it cannot be given.

Res Gestae

This Latin phrase literally translates as “things done”. In practice, this is legal doctrine that provides for the admission of statements made by a complainant or a witness to a third party, on or around the time that an offence was allegedly committed.

The statement must be so directly linked to the events occurring at the same time, so as to make it unlikely that they were distorted or concocted. Such statements may be admissible other than as “hearsay”.

The doctrine is most commonly used to adduce evidence from 999 calls and/or comments made to police officers immediately after the commission of an offence.

Such evidence is widely used in the context of domestic violence prosecutions where a complainant is unwilling to give evidence through fear or another reason, but where it remains in the public interest to prosecute.

Witness Summons

Where a complainant is unwilling to attend court, a “witness summons” compelling the complainant to give evidence can be sought. The prosecution should only apply to do so if it considers that the case can only succeed with the complainant’s evidence.

This is a robust measure. It does not guarantee that the witness will give evidence in the same terms as their initial complaint and also potentially exposes the victim to criminal liability if they fail to comply with the summons.

Nonetheless, in the context of a “victimless prosecution”, it remains an important consideration – if the prosecution seeks to prove its case using third party hearsay instead, the Court may well wish to know why a witness summons of the complainant has not been sought.

Other evidence

The prosecution may also commonly seek to rely on photos of injuries, evidence of or a disposition towards misconduct (known as “bad character” evidence), and silence/admissions in police interviews to prove its case without the support of a victim.

Future trends

Victims of psychological abuse are often unable to accept that they are in fact victims. Perhaps unsurprisingly, the Saunders case clearly indicates that the Crown Prosecution Service (CPS) intends to prosecute the offence of controlling and coercive behaviour by whatever means available.

We are therefore likely to see the number of victimless prosecutions for this offence rise, given that the Court has now confirmed that it is possible to achieve a conviction without victim testimony.

Indeed, the Police and Crime Commissioner has warned that “this case sends out a clear message to those who believe they can use control and fear to silence their partners - that there is no longer any hiding place for those that perpetrate domestic abuse."