It is hard to keep up with the numbers of “victims” who have failed to convince juries in the last few weeks. Bill Roache was said to have raped or indecently assaulted five women. Dave Lee Travis was accused of indecent or sexual assault by eleven. The jury rejected all Mr Roache’s charges except one: that one never reached the jury having been thrown out by the judge. In Mr Travis’s case the jury found him Not Guilty of 12 counts but could not agree on the remaining two. The Crown Prosecution Service will now have to decide whether to seek a re-trial on these two remaining charges.
Much justifiable praise has been heaped on DLT’s barrister, Stephen Vullo, whose closing speech was widely regarded as something of a tour de force, as well as on Louise Blackwell QC who defended Roache. It is little short of outrageous that despite their acquittals the defendants will recover none of their legal costs.
The CPS, meanwhile has come in for a great deal of criticism. What on earth was it doing bringing these cases which juries have obviously found so unconvincing? Does it take its prosecution decisions on the basis of cold hard reason or, as Simon Heffer has argued – in the course of a rather eccentric and inaccurate but nevertheless welcome attack on the Justice Secretary Chris Grayling – is its obsession with political correctness leading it to prosecute cases that it should leave well alone?
It is obviously wrong to criticise the CPS for bringing a case merely because it does not result in a conviction. Serious allegations often have to be prosecuted even when the evidence is not water-tight and there is no reason to suppose that “political correctness” played any direct part in the decision to prosecute either Mr Travis – his real name is Griffin – or Mr Roache. Faced with multiple allegations of sexual misconduct it would have been extraordinary if the CPS had decided not to prosecute.
On the other hand, the way in which decisions to prosecute are taken, especially in cases of sexual allegations, would benefit from a public debate.
The Crown Prosecution Service always points out that any decision to prosecute is only taken after careful consideration of the “Evidential Test” under the CPS code of practice. A prosecution will only be brought if there is “a realistic prospect of conviction.” This means the situation in which:
“an objective impartial and reasonable jury … is more likely than not to convict the defendant.”
What is seldom made clear to the general public, however, is that this does not mean that the CPS is required to guess what an actual jury is likely to do. Actual juries are assumed not to be objective, impartial and reasonable. This is because they may contain people who believe in what the CPS calls “rape myths.” Prosecutors are taught that they should “not allow these myths and stereotypes to influence our decisions.” Instead they must imagine what a “notional jury” would do if it consisted of people who, in the words of Alison Saunders, the Director of Public Prosecutions, are “wholly unaffected by any myths or stereotypes of the type which, sadly, still have a degree of prevalence in some quarters.” People, in fact, rather like Ms Saunders.
Some of these myths are set out on the CPS website as part of its legal guidance. This is not the place to discuss whether all of them are actually myths, although those with a keen nose for political correctitude will find a pretty heady bouquet. But one of them is said to be the belief that:
“You Can Tell if She’s ‘Really’ Been Raped by How She Acts”
Literally this is of course true, just as it is true that one cannot tell whether someone is honest by the way they give their evidence in the witness box. But what the CPS seems to be getting at is that one should not use a complainant’s behaviour at all in assessing whether she is telling the truth. As the legal guidance makes clear “many women experience a form of shock after a rape that leaves them emotionally numb or flat – and apparently calm.”
However, it is a little odd to see the CPS apparently advocating that an “objective and impartial jury” should disregard the behaviour of the main witness in any rape case.
Of course, on its own, the way someone acts seldom provides a completely safe guide to what they have done. But the criminal justice system depends on the assumption that often, at least to a degree, you can tell if somebody is telling the truth by the way they act.
If a slightly inebriated gentleman lurches off down the street when asked by the store detective to stop nobody suggests that his behaviour should be ignored when weighing up his explanation that he “shimply forgot” to pay for the bottle of whisky in the poachers’ pocket of his Barbour jacket.
If a murder suspect is seen burning his clothing in his back garden shortly after the victim was bloodily stabbed to death he may, of course, have a perfectly innocent explanation. But it would be absurd to ignore his behaviour in deciding whether there was sufficient evidence for a prosecution.
In the same way, if a woman accuses a man of rape, or a sexual assault, particularly many years after the event, it is not unreasonable to look closely at how she has behaved before and after the incident.
In some cases “the way she acts” will tend to support the allegation of rape. When this happens the Prosecution will happily rely on it.
If a woman on a dance floor unambiguously rejects the advances of a man who later claims she consented, her behaviour is relevant both to the issue of consent and to the related issue of his “reasonable belief” in her consent.
If, in a state of evident distress she then complains of rape to her best friend, most prosecutors see nothing wrong in inviting juries to accept that her distress and her complaint support the allegation, although one could perfectly well say that it is a misleading myth to assume that a woman who has been raped is necessarily visibly distressed.
But what if her behaviour points in the other direction? Did she invite him in for coffee at the end of an enjoyable date? Did she seem cheerful and carefree the following morning? Has she telephoned the alleged rapist repeatedly since the incident, or been out for meals with him, or even, as happened in one case to my knowledge, accepted a proposal of marriage from him? Of course none of these things is necessarily inconsistent with a rape having occurred. “Come in for a coffee” does not mean “come and have sex with me.”
Nevertheless, when there is no other evidence apart from the word of the complainant and the denial of the defendant then the way they each behaved is one of the few ways of trying to sort out where the truth lies. If we are to take into account her behaviour when it suggests a lack of consent why should it be ignored when it might suggest that she was a willing partner?
Unlike the CPS’s notional juries, real ones will inevitably do just that.
Matters become still more complicated when the jury is considering a historic case like Mr Travis’s. All but one of the charges were of indecent assault, some of which dated back to the 1970s.
This is an offence which was abolished in 2003 (I had originally and stupidly said it was a common law offence, many thanks to Alison Saunders for her polite correction below), so the jury had to wrestle with the law as it was in the past. An indecent assault was defined as an “assault” (which simply meant an unwanted touching) accompanied by “circumstances of indecency.” DLT’s defence appeared to be that he was a cuddly, “touchy-feely” sort of person but that he did not touch anyone indecently.
One of many potential difficulties for juries trying historic sex cases, especially relatively minor ones, is that there has been something of a shift in attitudes. Should a snatched kiss be regarded as a criminal indecency, or just as boorish behaviour? What about a pinched bottom? Or what used to be rather archly called a “wandering hand problem?” People will argue about such things even today but how on earth is a jury, consisting of people many of whom may not even have been alive in the 1970s, meant to decide what were “circumstances of indecency” then? A jury in the 1970s would have gone home to watch Benny Hill and the Black and White Minstrel Show. It would have been about as far removed from Alison Saunders’s notional jury of enlightened Guardian readers as it is possible to imagine. Why should the notional jury’s verdict be decisive in the charging decision?
None of this is to say that the CPS is always wrong to bring such cases. But perhaps its recent lack of success will at least make it pause to consider whether the way it applies its evidential test needs to be reconsidered.