Many people assume that once a complainant withdraws their allegation, the case will simply come to an end by “dropping the charges”. That is often not what happens. Every year, defendants are convicted despite the complainant refusing to support the prosecution.
Although the complainant’s wishes are an important consideration, they are only one of the ingredients in the CPS’s decision-making process. The Crown Prosecution Service considers whether there is sufficient evidence to provide a realistic prospect of conviction and whether a prosecution is in the public interest. If those tests are met, it may decide to continue with the prosecution despite the complainant withdrawing their support.
This article explains why prosecutions can continue after a complainant withdraws, what happens next, whether a witness can still be required to attend court, and how the remaining evidence may affect the defence strategy.
Can the CPS Still Prove the Case Without the Complainant?
In some instances, yes. A 999 call or an initial account captured on Body Worn Video may be admissible under the doctrine of Res Gestae. The prosecution will argue that the statement was made spontaneously in the immediate aftermath of the incident and is sufficiently reliable to be admitted, despite the complainant not giving evidence.
CCTV footage, forensic or medical evidence, police observations and admissions made by the defendant may also enable the prosecution to proceed even without the complainant’s support.
For example, I represented a client accused of a public order offence following an incident outside a pub. Although no members of the public were willing to provide statements, CCTV footage, the attending officers’ observations and their Body Worn Video provided very strong evidence of the offence.
If a complainant attends court but departs from their original account, the prosecution may ask the court to treat them as a hostile witness. If the court allows that application, parts of their previous statement may still be admitted into evidence.
Why Do Complainants Withdraw?
There are many reasons why a complainant may decide not to support a prosecution. It is a mistake to assume this means the allegation was false, but equally it does not necessarily mean it was true. In my experience, particularly in domestic abuse cases, common reasons include reconciliation, fear of attending court, family pressure or a belief that an isolated incident has escalated further than they intended.
Defendants should never contact a complainant to ask them to withdraw their complaint. Doing so may breach bail conditions and could be viewed as an attempt to interfere with witnesses or the administration of justice. If a complainant genuinely wishes to withdraw their support, they should do so independently.
Where a complainant withdraws, the CPS will usually ask the police to establish why before deciding whether the prosecution should continue.
Why Reluctant Witnesses Sometimes Still Give Evidence
The CPS can apply to the court for a witness summons to be issued – requiring the complainant to attend court, which can be a powerful tool. If the complainant fails to attend without a lawful excuse, the court may issue a warrant for their arrest, although in practice this is very rare.
If the complainant is reluctant because they are anxious or fearful about attending court, special measures are also available upon application by the Crown. These can include giving evidence from behind a screen or by live video link, so they do not have to see the defendant whilst giving evidence.
The Witness Support Service provides emotional and practical support throughout the court process. In domestic abuse cases, the police will often have a dedicated team of officers who explain the support available and encourage attendance. It is not unusual for the police to arrange transport to court where a complainant is reluctant to attend.
What if the Complainant Simply Doesn’t Attend Court?
If a complainant does not attend court at all, the prosecution may seek to rely on their previous statement under the hearsay provisions. An effective defence solicitor should carefully scrutinise and usually strongly oppose such an application. The hearsay provisions should not be used simply to get around the fact that a complainant has, for some unknown reason, decided not to attend court.
It is also common for the prosecution to apply for an adjournment so that a witness summons can be obtained. Again, this is an important moment for a defence solicitor to oppose the application.
A defence solicitor can rely on the Criminal Practice Directions, which make clear that adjournments should only be granted in exceptional circumstances. The prosecution should be required to explain precisely why the complainant has failed to attend and what steps have been taken to secure their attendance. An adjournment should be supported by proper reasons, not simply granted to give the complainant another opportunity to attend court.
If the court refuses the adjournment and the prosecution cannot proceed without the complainant’s evidence, it will often have little option but to offer no evidence, resulting in an acquittal.
How a Defence Solicitor Can Make a Difference
Given the risk of a prosecution continuing even where the complainant no longer supports the case, a defence solicitor can often play a decisive role at every stage of the proceedings.
At the police station, the evidence may still be weak or incomplete. A defence solicitor must consider whether further evidence is likely to be obtained and whether it is likely to be admissible. Those issues can have a significant impact on tactical decisions, including whether to answer questions or exercise the right to silence.
On the day of trial, prosecutors will often only offer no evidence after at least making a fist of an application to keep the case alive. A defence solicitor must be alive to this and oppose such applications where it is in the client’s best interests.
In one recent case, my client was accused of a domestic assault. Although the complainant did not attend trial, the CPS applied to admit her initial account to the police, recorded on Body Worn Video, under the doctrine of Res Gestae. I successfully opposed that application, arguing that the account had not been given in the immediacy of the incident but only after the complainant had calmed down. The application was refused and my client was acquitted. Cases like this demonstrate that the outcome of a trial can sometimes turn on fine legal margins.
Even where the remaining evidence is ultimately strong enough to merit consideration of a guilty plea, a defence solicitor can sometimes still significantly limit the consequences through a well-drafted Basis of Plea. By limiting the factual basis upon which the guilty plea is entered, it places the defendant in a more favourable position at sentence.
About the Author
Kate Macnab is a Senior Solicitor with almost 30 years’ experience in criminal defence, with particular expertise in domestic abuse and coercive and controlling behaviour cases. She regularly advises clients at the police station and represents them before the Magistrates’ Court. Kate has extensive experience assessing prosecution evidence, advising during police investigations and pre-charge engagement, and developing defence strategies from the earliest stage of a case.
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