A step backwards for women’s rights as the Court of Appeal refuses the appeal of an abuse survivor.
Today’s decision sends a clear message to survivors of domestic violence who have been coerced into silence: the criminal justice system will not protect them.
‘Jenny’ (who we cannot name for legal reasons) was convicted in 2017 of throwing her baby forcefully on the ground causing him serious injury.
At the time of trial, she maintained that she had dropped the baby by accident. In her appeal hearing on 28 October, she told the court that in fact the injuries suffered by the baby were the direct result of being punched in the head by her partner whilst she was holding the child. In investigating her case, APPEAL presented contemporaneous evidence from the night in question in support of her testimony, including:
A note of a hand injury to the fist with which Jenny’s ex-partner is alleged to have punched her that was not disclosed to original trial representatives or counsel.
Taken to A&E upon her arrest, Jenny was diagnosed with ‘post-concussion syndrome’.
Witnesses heard Jenny shouting “you hit me” at her ex-partner on the night of the incident.
Not questioned outside of the earshot of this violent and controlling man, Jenny didn’t feel she could disclose what had really happened, and eventually went along with his version of events.
Jenny described to the Court of Appeal how she lied to the police and the trial court because she was afraid for her life and the safety of her family. APPEAL presented uncontested evidence that Jenny, who is from a Black and Minority Ethnic background, lived with abuse so severe an expert psychologist described her experiences in the relationship as equivalent to “torture” and left her with PTSD. She endured being deprived of sleep and food and being unable to leave the house for extended periods of time. It was only after she was in prison, physically separated from her ex-partner, that she felt safe in coming forward.
Jenny says: “I’m in shock. The Court has given my abusive ex-partner power over me again. The judges have agreed with what he always told me: that no one will believe me, that I’m crazy, that I should remain silent. I feel like I am no longer a survivor of domestic abuse but once again, a victim.”
In a ruling that marks a significant climb-down on the so far increasing judicial recognition of the relevance of coercive control and domestic violence in the criminal justice context, Lady Justice Macur, Mr Justice Jay and Mr Justice Murray wrote:
“We accept that there is ample independent evidence of domestic violence having occurred within the relationship” and “we are also prepared to accept… that the applicant was punched.”
However, despite this admission, the justices “did not find the applicant to be a convincing witness regarding whether this was the mechanism which led to [the baby’s] injuries”.
They concluded that, “In these circumstances we are not satisfied that it is either expedient or necessary in the interests of justice to admit the fresh evidence upon which the applicant purports to rely.”
Naima Sakande, Jenny’s investigator and Deputy Director of APPEAL says: “I am deeply troubled by this decision. The Court of Appeal has not only slammed the door on Jenny but has risked silencing other women who have been wrongly convicted because they were too afraid to speak up about abuse.”
“The court has also decided that the trial jury would have been unaffected by Jenny’s new testimony, the history of abuse and the evidence that she was hit on the night in question. It is inconceivable to me that this would not have made a difference to their decision to convict.”
“The authorities say they are committed to ending violence against women, but it is evident that they are still a long way from understanding the complex issues involved in domestic abuse, including why a woman would delay in reporting.”
APPEAL will continue seeking avenues for justice for Jenny, including pushing for reforms within the police and the court system that will ensure that victims of abuse are identified as early as possible and are given the protection they need to safely report their ordeals.
The full judgment is available here: https://www.bailii.org/ew/cases/EWCA/Crim/2021/1776.html