Caroline Flack: Legal experts debate CPS decision to charge ‘Love Island’ presenter despite mental health revelations

Jon Sharman

Prominent lawyers have criticised the Crown Prosecution Service (CPS) for its decision to charge Caroline Flack with assault.

Ms Flack, who was found dead at her east London flat on Saturday, faced trial over claims she attacked her boyfriend Lewis Burton in December. Mr Burton did not support her prosecution.

News that the former Love Island presenter told police officers in the aftermath of the alleged assault that she would take her own life has sparked furious debate over the standards the CPS uses to determine charging decisions.

Prosecutors have defended their decision, explaining that they apply both evidential and public interest tests. “We do not decide whether a person is guilty of a criminal offence – that is for the jury, judge or magistrate – but we must make the key decision of whether a case should be put before a court,” they said.

The CPS asks questions “including how serious the offence is, the harm caused to the victim, the impact on communities and whether prosecution is a proportionate response”, it said. It also has lengthy guidance on how mental health problems relate to prosecutions.

Dr Charlotte Proudman, a barrister at Goldsmith Chambers, told the BBC’s Victoria Derbyshire: “I’m struggling to understand why the CPS brought this prosecution in the first place. By all accounts, it was made very clear that Caroline was suffering severely with her mental health not only at the time of the incident but also subsequent to that. It’s likely as a result of this prosecution that she became even more vulnerable.”

Dr Proudman, who is not a criminal lawyer but has campaigned on women’s rights issues like female genital mutilation, claimed that prosecutors had “victimised someone who’s supposed to be an alleged perpetrator”, and said mental health should be “given greater weight” in charging decisions.

Chris Daw QC, a high-flying criminal barrister, said he believed the policy of prosecuting domestic abuse cases “against the express wishes of the complainant” should be reviewed.

He tweeted: “I have no doubt that a more sensitive approach to the case would have avoided this terrible tragedy. We have become obsessed with the idea that criminal prosecutions can solve these problems. They cannot.

“We need to look at restorative justice, counselling and support where that is what the complainant wants. Forcing him or her into court is a form of abuse.”

However, another lawyer cautioned that only someone involved with Ms Flack’s case could have known the reasoning behind the decision to charge her.

The Secret Barrister, a practising lawyer in the criminal courts, tweeted: “Nobody, except those involved in a criminal case, knows enough details to comment on whether the CPS was right or wrong to pursue a prosecution.

“But certain difficult truths are worthy of reflection. Such as the lack of systemic oversight for the ongoing welfare of the accused.

“As a prosecution and defence barrister, I see frequently how, save in cases where an accused has severe mental health problems that impact upon the legalities of the trial process, there is little consideration for the impact of proceedings upon a defendant’s welfare.

“Rarely is it acknowledged how the strain of the criminal process – whether the allegation is true or not – can affect a person. Can break a person. And this lack of care pervades not only the system but our society.”

And Max Hardy, a criminal barrister from 9 Bedford Row Chambers, tweeted: “The period between arrest and charge is fraught for anyone caught up in the criminal justice system, the period between first appearance and trial even more so. In a civilised and functioning society that period should be as short as possible, in ours it’s months of anxiety.”

There is a presumption that prosecuting domestic abuse is in the public interest, and discontinuing a case because of a defendant’s mental health would be “rare”, according to former director of public prosecutions Lord Ken Macdonald.

Lord Macdonald said: “One of the major problems there is in bringing these cases is that victims often withdraw their complaint and very often that’s because they’re being bullied or threatened or manipulated by the person who has attacked them in the first place. So the principle has grown up that the CPS try and bring prosecutions even if the case isn’t supported by the victim, and indeed they are urged to do that.”

Speaking about concerns over support given to vulnerable defendants, he added: “The prosecutors could, in theory, have said: ‘We won’t prosecute this case because she is too fragile’, but that’s quite rare to drop the case for that reason. Normally the prosecutor would say: ‘Well we’ll go through the court process and the court can take into account her mental health when it’s passing sentence’.”

He added: “There is a huge, hidden problem of mental health issues in criminal justice. Quite a significant proportion of people who are prosecuted have addiction problems or they have mental health problems or they have emotional problems of one sort or another, and the truth is there’s little or no support offered to them.

“To start offering support at that stage of proceedings would be very expensive and we have to really create a whole new form of social service to do that.”

Additional reporting by PA

If you are experiencing feelings of distress and isolation, or are struggling to cope, The Samaritans offers support; you can speak to someone for free over the phone, in confidence, on 116 123 (UK and ROI), email, or visit the Samaritans website to find details of your nearest branch.

For services local to you, the national mental health database Hub of Hope allows you to enter your postcode to search for organisations and charities who offer mental health advice and support in your area.

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Caroline Flack told police she would kill herself after alleged attack