This is the reason cases like Caroline Flack's don't always rely on statements from domestic violence victims

There has been a sea change in the willingness of the CPS to take cases to trial irrespective of the degree of support to the prosecution, and for good reason

In England and Wales, despite a commonplace misconception, victims do not press charges. Likewise, it is not ultimately the decision of alleged victims of crime whether a prosecution does or does not proceed. In Caroline Flack’s case, it was not up to her boyfriend Lewis Burton whether she should be charged.

Victims of fraud or burglary usually lend enthusiastic support to police investigations and any arising prosecutions. For other kinds of crime the police often encounter absolute silence on the part of victims: those on the receiving end of gang-related evidence are, regrettably, often unwilling to make any kind of statement to the police.

Alleged domestic violence statements are usually taken immediately following the incident, when police engagement is most likely to succeed. As the trial approaches, reluctance and disengagement can set in. If a statement has been made, the prosecution can apply for the court to summons the witness to attend with, ultimately, a power for the witness to be arrested and brought to court by the police. That is, unsurprisingly, an option of last resort. If there is no statement then the case has to be built around whatever other evidence the police can muster.

The Crown Prosecution Service has long experience of cases involving witnesses that refuse to engage at all, and of witnesses that do, but go on to have second thoughts. It has carefully formulated policies and guidance, publicly available on its website, to handle such situations. Underpinning all of that is the Code for Crown Prosecutors which enunciates a two-stage test: Is there enough evidence against the defendant (a realistic prospect of conviction) and is it in the public interest for the CPS to bring the case to court?

If the prosecutor determines that a conviction is more likely than not, then a prosecution will usually take place unless the prosecutor is sure that the public interest factors tending against prosecution outweigh those tending in favour. The prosecutor should consider how serious the case is, how culpable the suspect, what the circumstances were and the level of harm caused, the age and maturity of the suspect, what the community impact is, whether prosecution is proportionate and whether any sources need protecting.

In a straightforward case, the prosecutor will have a contemporaneous witness statement from a willing complainant giving a clear account of an assault, the circumstances that gave rise to it and any injuries sustained. Very few domestic violence cases are straightforward because emotional and financial considerations can exert a very strong pull on the support that is given to the prosecution.

In the past, "no witness" invariably meant "no case". Sometimes "no witness" was attributable to the witness knowing they had made an untrue or exaggerated allegation, sometimes it was because their commitment to the domestic relationship was more important to them than the success of the prosecution, sometimes it was because they were so terrified of the perpetrator, or so controlled, that fear kept them away. Without a trial, there would be no determination of which explanation applied.

There has been a sea change in the willingness of the CPS to take cases to trial irrespective of the degree of support to the prosecution, if any, provided by the alleged victim. The prosecution can deploy other evidence: 999 recordings, medical evidence, evidence from other eyewitnesses, CCTV, body-worn video footage, DNA and fingerprint evidence, social media evidence, telephone evidence, Automatic Number Plate Recognition evidence. Some of that evidence is readily and immediately available, other evidence, involving expert analysis, can take a significant period of time to obtain.

The advent of police body-worn footage has had a particularly big impact on the ability of the prosecution to proceed to trial when the alleged victim is unwilling to make a statement at all. Little is more immediate and impactful than footage from a camera worn by a police officer at the time, showing the scene, the appearance and demeanour of the respective parties.

Proceeding to prosecution against the express wishes of the alleged victim is obviously a matter for careful assessment by the prosecutor but the public interest test does sometimes require that happens. A culture of what goes on behind closed doors stays behind closed doors certainly, in times past, caused a lot of harm and preventing harm is ultimately a prosecutor’s job.

Max Hardy is a criminal barrister at 9 Bedford Row chambers