08222017Headline:

Domestic Violence and the limits of (media interest in) Human Rights

Human rights cases rarely seem to generate media interest unless some populist bogeyman, like Abu Qatada, has successfully scuppered a government policy by running to the European Court of Human Rights in Strasbourg. In the UK in particular, the confluence of human rights claims by figures such as Qatada, and the distrust of European institutions (irrespective of whether those institutions form part of the Council of Europe structures or belong to the European Union) amongst sections of the press, combine to make certain cases “newsworthy”. Other decisions, such as the European Court’s rejection of Irene Wilson’s petition earlier this month, have gone largely unreported (with the exception of human-rights interest blogs, such as the UK Human Rights Blog).

Following his conviction for a brutal attack which marked the culmination of over 30 years of emotional and physical abuse, Ms Wilson’s husband received an 18-month sentence, suspended for three years, in 2008. In passing this sentence, local press reported that the judge hearing the case took account of her husband’s ‘previous good character, the fact he had admitted guilt at the earliest opportunity and because the probation services believed that his remorse and embarrassment were genuine’. In response to the leniency of this sentence, Ms Wilson launched a high-profile campaign to raise awareness of domestic violence in Northern Ireland. This campaign included claim that the approach to her case by Northern Ireland’s courts and prosecuting authorities was inadequate to protect her right to private and family life (Article 8 ECHR).

The facts of the case reveal many of the difficulties a justice system faces in dealing with domestic violence. Ms Wilson’s initial statements to the police conflicted with her later accounts of her abuse, and she at one stage reconciled with her husband. But police and prosecution services persevered with the prosecution, and when the decision was reached to charge her husband, Ms Wilson was able to separate from him permanently. During subsequent media interviews Ms Wilson has praised the attitude of Police Service of Northern Ireland (PSNI) officers and their willingness to pursue the case; ‘I can honestly say that the staff at the domestic abuse unit on Strand Road are very helpful’. In this regard the lessons of earlier official strategy documents, which indicated that in 2005 the PSNI was dealing with around 400 domestic abuse incidents every week.

Prosecutors, concerned that they would have difficulty establishing that her husband possessed the intention element required by some of the most serious offences against the person, opted for a less serious charge (section 20 of the Offences Against the Person Act). When the judge subsequently allowed her husband to avoid prison, Ms. Wilson contended that ‘the suspended sentence given to her husband was unduly lenient and was much lower than would have been delivered had the offence occurred outside marriage’ and that the prosecuting authorities should have consulted her on the appropriateness of the charging decision (Wilson v UK, [27]). These failings, she alleged, meant that the UK had not provided sufficient protection to enable her to enjoy her private and family life.

The European Court recognised that ‘Victims of domestic violence are of a particular vulnerability and the need for active State involvement in their protection’ (at [37]). Nonetheless, in Ms Wilson’s case the Court was satisfied that the minimum requirements of this rule were satisfied as ‘the matter was promptly investigated and her husband was arrested and charged’ and that ‘[t]he criminal proceedings thereafter were conducted with due expedition’ (at [48]). Nor did the Court criticise the trial judge (at [50]):

‘Of course, passing a suspended sentence was a much more lenient response than passing an immediate custodial sentence, but there was merit in the sentencing judge’s approach. The virtue of passing an eighteen-month sentence and then suspending the sentence for three years was that it deterred the applicant’s husband from any further violent behaviour towards her for three years, since any further incidents could have resulted in his being made to serve the eighteen month sentence. That arguably gave the applicant longer and better protection from her husband than imprisoning him immediately would have done. That approach appears to have worked: there have been no other incidents since the assault on 20 October 2007.’

The UK was not, therefore, in breach of its ECHR obligations (and, by the European Court’s reference at [37] to reading Article 8 in light of other international treaties to which the UK was party, the Court seems to clear the UK of breaching treaties such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)). But Wilson v UK, in spite of not even passing the admissibility stage of European Court proceedings, remains significant. The European Court has been consistently reluctant to impose positive obligations upon states as a result of the qualified ECHR rights, and therefore this case was always likely to have a slim chance of success. Nonetheless, meeting human rights obligations is the minimum requirement for state policy, and the Wilson decision should not be considered to indicate that Ms Wilson’s treatment during the prosecution process amounted to “best practice”. Indeed, as late as 2005 Northern Ireland’s Public Prosecution Service (PPS) was still developing ‘a training programme for lawyers’ involved in domestic violence cases. We can hope that such a training programme now addresses the issues raised by this case.

Alongside volunteering for Women’s Aid, and seeking to raise awareness of domestic violence in Northern Ireland through media interviews, Irene Wilson’s case can be seen as a key part of her effort to keep public debate focused on the issue of domestic violence. In this respect, the lack of any meaningful media coverage of her campaign or the European Court’s decision represents a serious failure in the way in which society addresses court decisions in general, and domestic violence issues in particular.

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