Cutting a long story short: Reform of witness evidence in the Business & Property Courts
The current domestic abuse storyline in the popular BBC Radio 4 soap opera The Archers has prompted some excellent blogs. However, this blog is aimed at debunking myths and misconceptions regarding the legal process and will provide a summary of the most interesting legal issues in each omnibus edition.
In case you were completely disconnected from any kind of news, Wi-Fi and radio for the last week (or under 30) here is the story so far:
Helen has stabbed her controlling and coercive husband Rob. For details regarding the offence of “Controlling & Coercive Behaviour in an Intimate or Family relationship” see the excellent blog by John Harding here.
Helen was about to leave Rob taking her 5 year old son Henry who is also present with her. In a rage Rob brandishes a knife making it clear to Helen that the only way she is leaving is if she kills herself. Turning the table in classic Kobayashi Maru style Helen causes the injuries which place Rob on life support and needing a stoma.
Helen was arrested for Grievous Bodily Harm with Intent and is now charged with attempted murder. She is on remand awaiting a plea and trial preparation hearing. Her son Henry is being looked after by his maternal grandparents.
Is Rob going to die – does it matter when?
If Rob dies, Helen’s actions will be responsible for the death so long as there is nothing that intervenes to replace her culpability. The position used to be that there was a requirement for death to occur within a year and a day of the act or omission alleged to have caused death but this changed with the Law Reform (Year and a Day Rule) Act 1996 for any act or omission which occurs after 16 June 1996, as here. If Rob dies, then Helen will almost certainly be charged with murder.
Did Helen act in Self-defence?
Self-defence is a complete defence to any charge of assault including attempted murder. If an individual acts in self-defence they are entitled to be acquitted as opposed to convicted of a less serious offence.
The incident itself bears listening to again not least because we know Rob is the person who initially brandishes the knife and he sustains injuries to his chest, stomach and wrists which cannot have been caused in a single blow.
Even if Helen starts off by defending herself (and/or her son) the repeated injuries, the exact order and angle of these will be pivotal in determining whether she acted in reasonable self- defence. It begs the question as to whether what started out as self-defence has become simply an unjustifiable assault. Excessive self-defence does not provide a defence. Self–defence is an all or nothing defence making the precise details, based on the accounts from Helen, Rob and Henry together with the forensic evidence (perhaps including Rob’s fingerprints on the knife) pivotal in her defence.
The law does not require a person under attack to carefully judge and weigh the exact level of force they employ in defending themselves. However reliance on this defence is judged by what is reasonable in all the circumstances as Helen believed them to be. It is not necessary for her to run away rather than defend herself and a pre-emptive strike does not prevent her from relying on self-defence.
So the questions are:
In any trial Helen’s defence need to raise evidence that she acted with the intention to defend herself. It does not have to be much by way of evidence and it may be that the simple assertion is sufficient. Once she has done this the burden shifts to the crown to disprove that she had that belief and that her actions were reasonable. If the jury are left in any doubt as to whether she is acting in reasonable self-defence they will be directed to acquit her.
What are they?
Henry's been interviewed under the “Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures” protocol. (ABE for short!) This amounts to a video recorded interview as opposed to a written statement and is used for witnesses under 18 years old or who are otherwise defined as vulnerable under s16 of the Youth Justice & Criminal Evidence Act 1999.
Who gave permission for Henry’s interview
The only people with parental responsibility for Henry are not in a position to give informed consent. Henry cannot give consent particularly as there is no method of distinguishing “consent” from his simply obeying what an adult has told him to do. As his carer his grandmother can consent to the interview but what if she refused?
In reality the combined power of the police and social services under the Children Act 1989 via a s47 investigation (where there is a risk that a child has or is likely to suffer significant harm) or s44 (enabling emergency protection powers to be used) would make any objection by his grandmother irrelevant.
Can a 5 year old be relied on to tell or understand the truth?
Whether the witness is competent to provide the statement depends on all the circumstances including the child’s chronological age and maturity. Where a witness is competent to give evidence they are usually also compellable. Which means Henry may have to attend a subsequent trial.
It is advisable though surprisingly not mandatory to establish that a child witness can differentiate between truth and lies. As with Henry this is usually established by providing examples and asking the child to determine whether the interviewer is telling the truth or a lie. Examples are often relevant to the child’s age and experience. A further step that is often missed is then establishing with the child the importance of telling the truth in the interview. It is not sufficient to simply demonstrate that they know what truth and lies are but also to emphasise the importance of telling the truth in what is an unusual and very important conversation.
Understatement of the week
Goes to Helen's mother who proclaims while her daughter is languishing in the police station having been arrested (for Grievous Bodily Harm at that stage) “I think Helen needs a lawyer”. Too right Mrs Archer.
For more information regarding any of the legal issues featured in this blog please contact Sandra.
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