Prosecuting Domestic Abuse in England and Wales: Crown Prosecution Service ‘Working Practice’ and New Public Managerialism
| DOI | 10.1177/0964663918796699 |
| Author | Antonia Porter |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(4) 493–516
Prosecuting Domestic
ª The Author(s) 2018
Article reuse guidelines:
Abuse in England and
sagepub.com/journals-permissions
DOI: 10.1177/0964663918796699
Wales: Crown Prosecution
journals.sagepub.com/home/sls
Service ‘Working Practice’
and New Public Managerialism
Antonia Porter
University of Kent, UK
Abstract
The Crown Prosecution Service (CPS) regards offences of domestic abuse as
‘particularly serious’ and considers tackling violence against women a ‘priority’. This
article examines how criminal prosecutors in England and Wales approach cases of
intimate partner abuse in practice, specifically at the point when a complainant no
longer wishes to support the prosecution. It first introduces ‘New Public Manage-
rialism’ (NPM). This is the lens through which the qualitative responses of a sample of
nine prosecutors are thematically analysed. Second, the primary research indicates a
prosecutorial tendency or ‘working practice’ in 2017 disinclined to terminate cases
on request, prompting instead the routine or habitual use of ‘witness summons’.
Third, the article exposes how techniques of NPM have contributed to the identified
‘working practice’, often in concealed and unintended ways. Managerial priorities in
this context appear to have restricted the free exercise of the prosecutor’s discre-
tion to take decisions on a case-by-case basis. The implications for women’s safety
and autonomy are considered.
Keywords
Crown Prosecution Service, domestic violence and abuse, managerialism
Corresponding author:
Antonia Porter, Kent Law School, Eliot College, University of Kent, Canterbury CT2 7NS, UK.
Email: adp28@kent.ac.uk
494
Social & Legal Studies 28(4)
Introduction
The Crown Prosecution Service (CPS) is charged with the responsibility of implement-
ing the ‘prosecutive power of the state’ in England and Wales (Bennion, 1986: 3). Its
inception in 1986 came on the back of centuries of ‘notoriously ramshackle’ police
prosecutions that had been piecemeal in approach and undirected and non-uniform
across geographies (Bennion, 1986: 3). In a bid to bring consistency, the CPS now
routinely publishes policy objectives to guide individual prosecutorial discretionary
decision-making. In the area of intimate partner abuse, echoing the demands of women’s
groups, changing social attitudes and the UK government’s wider strategy to end vio-
lence against women and girls (HM Government, 2016), CPS policy confirms that it is
endeavouring ‘to bring more perpetrators to justice’ (CPS, 2017a).
The first CPS domestic violence policy statement came in 1993. It pledged to pro-
secute all evidentially viable cases in the public interest in a bid to address wider
concerns that the criminal justice system (CJS) was failing to do enough to protect
abused women in the private sphere (Gottschalk, 2012; House of Commons, 1975). It
also followed specific criticism of the CPS that too few cases were being charged, too
many cases were having charge levels reduced and that discontinuance rates were too
high (Burton, 2008: 93; Cretney and Davis, 1997: 147–148). The CPS was only therefore
delivering ‘modest achievement’ in such cases (Cretney and Davis, 1997: 147). Despite
police services simultaneously introducing pro-arrest policies in 1993 (Hoyle and San-
ders, 2000: 17), the CPS policy statement resulted in insignificant shifts in working
practices. Consequently, in 2005, there came a CPS policy restatement and, alongside
it, mandatory domestic violence training for all prosecutors (CPS, 2008). Training was
delivered nationally between 2005 and 2008 and definitively signalled the crime’s
augmented priority within the organization (Hall, 2009: 143–149).
Current Domestic Abuse Guidelines for Prosecutors continue to regard the offence as
‘particularly serious’ (CPS, 2014) and a ‘priority’ (CPS, 2017a). As such, the CPS
celebrates its year-on-year increases to the domestic abuse (DA) conviction rate, which
last year saw, once again, its highest ever recorded rate: 75.7% (CPS, 2017a). Such open
and unqualified celebration of the improved rate of convicted offenders inevitably sets
the tone that ‘success’ in these cases for the CPS equates to convictions.
Nonetheless, victim withdrawal from the criminal justice process remains a signifi-
cant obstacle to successful DA convictions (CPS, 2016; Office for National Statistics,
2016).1 Prosecutors must, therefore, regularly confront the question of how to proceed
when the victim expresses her wish for discontinuance. Succinctly put, prosecutors can
either accede to her request2 or decide to pursue the prosecution, absent her support.3
‘Victimless’ prosecutions can be achieved where a ‘realistic prospect of conviction’4
exists without requiring the victim to give evidence at trial, provided other corroborative
evidence allows. Such evidence might include police body-worn video footage, 999
emergency calls, medical records of injuries or third-party witness testimony (see Bet-
tinson and Bishop, 2017).5 However, alternative evidential opportunities are not always
available; hence, prosecutors may request that the court issues a summons to secure the
victim’s attendance at trial.6
Porter
495
Using data from nine semi-structured interviews with prosecutors based in the South
of England, the article examines whether an identifiable ‘working practice’ or typical
way of proceeding, when the complainant withdraws, can be identified (see methodol-
ogy below). It explores how stated CPS claims to ‘prioritise’ (CPS, 2017a) Violence
Against Women are performed by this sample in practice. Despite CPS guidance to
prosecutors asserting that to compel or ‘summons’ an unsupportive victim to give evi-
dence at trial should be the prosecutor’s ‘last resort’ (CPS, 2014), the primary research
reveals that prosecutors in the sample in fact routinely rely on summons (albeit there are
preliminary indications that prosecutors are beginning to step back from this presump-
tion to summons). Having identified a tendency or ‘working practice’ of prosecutorial
reliance on summons, the article uncovers how techniques of New Public Managerialism
(NPM) have contributed, often in clandestine ways, to restricting the true free exercise of
prosecutorial discretion to consider DA on a case-by-case basis.
The article therefore contributes to and updates existing knowledge about prosecu-
torial ‘working practice’ in DA cases. Moreover, it makes the original observation about
how techniques of NPM can operate to restrict professional discretion in the CPS,
encouraging here the use of witness summons. Such a habitual working practice has
implications for women’s safety and impacts on the potential of criminal justice inter-
vention to contribute to empowering outcomes for DA victims. Before outlining the
‘working practice’ and its emergence in the context of managerial demands, the article
outlines its methodology and its lens, NPM.
Methodology
This research was made possible as a result of a scholarship fund granted by Kent Law
School. Having obtained ethical approval from the School, I wrote individually to
prosecutors inviting them to take part, anonymously, in the research. As the project
became known locally, prosecutors I had not approached directly volunteered them-
selves and gave me contact details of other potential interviewees. The sample was thus
built from my initial local knowledge of prosecutors, networking and the effect of
‘snowballing’. The sample was drawn from one CPS area in the South of England, a
region comprising rural areas and urban and coastal conurbations.
Despite the diversity of the region and the CPS organizational structure being repre-
sentative of the institution as a whole, caution must be exercised in suggesting the
potential for national generalizability of the primary research, being mindful in particular
of the sample’s small scale. It is possible that the ‘working practice’ identified in the
sample might have evolved within local offices and subsequently been reinforced
between proximate colleagues. Given the limitations of the sample due to its size and
geographic confines, the value of the work is not to assert a conclusive state of affairs or
definitive ‘working practice’. Rather, as the sample reveals an area tendency for prose-
cutors in 2017 to rely on summons, its value is to stimulate and animate CPS institutional
reflection on the one hand and to contribute to literature that explores managerial influ-
ences on professional decision-making on the other.
Interviews were guided by the use of a semi-structured interview schedule. The
schedule acted as a ‘topic guide’ (Bell, 2006), prompting me to cover the target areas
496
Social & Legal Studies 28(4)
of enquiry but allowing me flexibility in terms of sequencing the questions. The
approach also allowed me some latitude to explore each topic in depth (Yin, 2003),
particularly where responses were felt to be significant (Bryman, 2012). The questions
were largely open questions that invited extended or rich (Weick, 2007) responses from
the participant prosecutor, thus permitting answers in the prosecutor’s own terms not
being directed or influenced by me. Interviews were audio recorded and transcripts were
prepared for analysis. Transcripts were sent by email for participant comment and/or
amendment. On two occasions, I sought clarification with respondents by email.
During the thematic analysis, I familiarized myself with the data before coding and
identifying themes (Braun and Clark, 2006)....
To continue reading
Request your trial