Domestic violence: the limits of Strasbourg’s intervention

2 November 2012 by Lois Williams

Irene Wilson v. The United Kingdom (Application no. 10601/09) – read admissibility decision

Sadly barely a month seems to go by without a report in the media about the police and the justice system failing to protect the victims of domestic violence.

The Strasbourg Court  has been required on a number of occasions to assess whether the response of domestic authorities to domestic violence has been compatible with their positive obligations under Article 8 (right to respect for  family and private life) of the Convention.  Given that such individuals are of a particular vulnerability, Strasbourg has repeatedly emphasised the need for active state involvement in their protection. However, in this particular admissibility decision, the Court held that the Northern Irish authorities had not failed in their duty under the Convention to protect the applicant.

Background Facts

The applicant, Irene Wilson, was assaulted by her husband after they had been out drinking.  She suffered a severed artery on her head, requiring eight stitches as well as multiple bruising. Her husband was arrested and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861.  He was granted bail and required to reside at an alternative address to the matrimonial home.

The applicant and her husband reconciled, further to which he returned home and she withdrew her complaint. The Public Prosecution Service of Northern Ireland (“the PPS”) decided nonetheless that the prosecution should proceed.  This decision was made according to the PPS’s policy for prosecuting cases of domestic violence, which provides that cases will not automatically be stopped because the victim does not want to proceed.  In any event, the reconciliation between the applicant and her husband proved to be only temporary and, when the applicant was informed of the PPS’s decision, she reinstated her complaint.

Subsequently, the PPS concluded that there was insufficient evidence in relation to the intent element as required under section 18 of the 1861 Act.  The charge was therefore reduced to one of grievous bodily harm contrary to section 20 of the same Act.  Prosecuting counsel explained the nature of this new charge to the applicant before the matter came to court.

Having entered a plea of guilty, Mr Wilson appeared for sentencing.  The judge considered, amongst other things, a victim impact report and a probation service report.  He sentenced him to eighteen months’ imprisonment, which was suspended for three years.  The judge took into account the fact that the defendant had no criminal record, his genuine remorse, the fact that he had pleaded guilty, and that he had already engaged in counseling.

The applicant considered the sentence excessively lenient and complained to various public bodies in Northern Ireland, without success.  In particular, the Attorney-General stated that he did not have the power to apply to have the sentence reviewed by the Court of Appeal as that power was limited to the most serious offences, e.g. offence under section 18 (the original charge in this case).  The applicant also sought compensation for her injuries from the Northern Ireland Compensation Agency which, after a review of the original refusal and a referral to a psychiatrist, she was eventually offered.

Before Strasbourg the applicant complained first that the criminal proceedings were conducted without sufficient regard for her rights as a victim and second that the suspended sentence given to her husband was unduly lenient.  She also invoked Article 13 (right to an effective remedy) of the Convention that she did not have an effective remedy in respect of these complaints.

Both complaints were rejected as manifestly ill-founded.

The reasoning behind the Court’s decision

The Court considered that the applicant’s complaints fell to be considered under Articles 8  and  13 of the Convention.  While the essential object of Article 8 is to protect the individual against arbitrary action by public authorities, there are also positive obligations inherent in effective “respect” for private and family life.  Therefore there must be an adequate legal framework which affords protection against acts of violence by private individuals.

The Court found that there was no scope for criticism of the PPS’s conduct of the case.  It was entirely a matter for the PPS to decide whether the intent element of section 18 could be proved and, when they concluded that it could not, to reduce the charge to the next most serious offence. In addition, the PPS had done everything in their power to keep the applicant informed of the progress of the case, both before the matter came to court and after sentencing.  Of some importance also, was the PPS’s decision to proceed with the prosecution at a time when the applicant wished to withdraw her complaint.

Moving to the sentence, the focus of the applicant’s complaint, the Court held that the sentence had to be seen in the context of the procedure which preceded it.  The judge had taken into account the victim impact report which would have enabled him to assess the seriousness of the offence and a probation service report through which he could identify the root cause of the incident, in this case Mr Wilson’s drinking.  The transcript of the sentencing remarks showed that the judge, having considered the evidence, also carefully considered all of the sentencing options open to him, including an immediate custodial sentence.

The Court therefore found that the judge was entitled, particularly on the basis of the probation service report, to conclude that a probation order would serve no purpose as Mr Wilson was already undergoing counselling.  Nor could it be said that a suspended custodial sentence was a manifestly inadequate response to the gravity of the offence.  Whilst it was more lenient than passing an immediate custodial sentence there was actually merit in this approach.  The suspending of the sentence for three years deterred the applicant’s husband from any further violent behavior towards her and that arguably gave the applicant longer and better protection from her husband than imprisoning him immediately would have done.  The Court found that approach appeared to have worked: there had been no other incidents since the assault.

The Court unanimously concluded that the Northern Ireland authorities had not failed in their positive obligation to secure the applicant her rights under Article 8.  No issue arose under Article 13 since the applicant had at her disposal and in part actually made use of, criminal law and civil law remedies, even though these did not include the power of the Attonery-General to refer the case to the Court of Appeal.

In contrast to other  cases which they had previously reviewed, this was not a case where the domestic authorities did nothing in the face of repeated and credible complaints by the applicant.  This may be of little comfort to the victim in this case but the Court made clear that its task was not to substitute itself for the competent domestic authorities in determining the most appropriate methods for protecting individuals, but rather to review the decisions that the authorities had taken.  In this particular case, the authorities were not found to have taken a dilatory response to the victim’s plight, but rather to have  taken decisions which fulfilled the all-important positive obligations under Article 8.

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