We shouldn’t draw the wrong conclusions from Ben Fellows’s acquittal

The acquittal of Ben Fellows on a charge of perverting the course of justice by falsely alleging that he was “groped” by Ken Clarke during the making of a television programme is in danger of being misunderstood.

The allegation was that he had falsely told the police that after he had been plied with alcohol at a party, Ken Clarke had groped him, by touching his genitals over his clothing. Mr Fellows was described in the prosecution opening speech as a “an inventive and sometimes persuasive fantasist”.

In evidence Mr Clarke denied having met Mr Fellows, and firmly denied any sexual contact. He described the idea that he would “go strolling off to grope a man in an office” as “highly unlikely.” His evidence was supported by, amongst other people, a journalist who works for Exaro News, David Hencke, who was adamant that no such incident took place. Indeed Mr Hencke had written in some detail on the Exaro website in 2013 about how his written statement to Operation Fairbank “helped police clear Kenneth Clarke of a sex assault smear.” There is a possibility, I suppose, that if Mr Clarke had not been fortunate enough to have had Mr Hencke helping to exonerate him, he could have been prosecuted on the basis of Mr Fellows’s allegation, or “smear” to use Hencke’s word.

For his part, when he gave evidence Mr Fellows insisted that Clarke had groped him, although he said it was “not upsetting at all, weird but not upsetting.” Apparently it was “no more than a minor grope that you get every Friday or Saturday night in a club.”

So, here was a straight conflict of evidence: Mr Fellows insisting that he had been sexually assaulted, albeit in a fairly minor way, and Mr Clarke and Mr Hencke adamant that he had not been.

On the face of it, many would say, a verdict of acquittal must mean that the jury believed Mr Fellows; and by the same token they must have thought Mr Clarke and Mr Hencke were either lying or forgetful.

Such a conclusion would be wrong, although, because juries do not need to give reasons for their verdicts, it remains possible that they thought just that.

There are, however, quite a number of other possibilities.

Under our system of criminal justice a defendant is entitled to be acquitted unless the prosecution proves his guilt “beyond reasonable doubt.” These days judges usually direct the jury that they must not convict unless they are “sure,” but it means the same thing.

If, for example, the jury had been “almost sure” that Clarke was telling the truth, and almost sure that Fellows was lying, then the proper verdict would still have been one of Not Guilty, because “almost sure” plainly denotes a lesser degree of certainty than “sure”.

We also need to look at the charge that the prosecution were trying to prove. “Perverting the course of justice” requires proof of an act which both “tended” to pervert, and was “intended” to pervert the course of justice. The question of intent would have been central to the jury’s deliberations.

The press reports have inevitably been incomplete, but we know that the prosecution opened the case on the basis that Mr Fellows was a “fantasist.” That could have planted the first seeds of doubt in the jury’s mind. The word “fantasist” is ambiguous. Many fantasists know perfectly well when they are lying. But the word is also used to describe someone who genuinely believes an account which is not in fact true. Memory is a fickle friend, and it is perfectly possible for people to believe that an incident took place when it in fact did not. Clearly somebody relating a false account in the belief that it is true does not have the all important “intention” to pervert the course of justice and if the jury thought that this was at least a possiblity in Mr Fellows case then a Not Guilty verdict was quite correct.

So, before demands are made to prosecute Kenneth Clarke for sexual assault, the evidence at Mr Fellows trial needs to be examined very carefully indeed. For Felllows to prove beyond reasonable doubt that he was the victim of an assault is a very different matter than simply raising a doubt that he intended to pervert the course of justice.

Perhaps the moral of the story is the simple one that memories, whether of alleged victims, politicians or journalists are inherently unreliable. Allegations based on memories alone should always be scrutinised by prosecutors, journalists and juries with great care.

It may be unsatisfactory, but sometimes it is simply impossible to be sure where the truth lies. If a jury is not sure, it has to acquit. It would be a great deal more unsatisfactory if the law required anything less than that high standard of proof.

Liked it? Take a second to support Matthew on Patreon!

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

42 thoughts on “We shouldn’t draw the wrong conclusions from Ben Fellows’s acquittal”

  1. Playing devil’s advocate, how does David Hencke know that the alleged grope did not happen ? I find it almost surreal that someone who spends so much time pointing the finger at others, has taken such a stand in this instance !

    1. Hencke didn’t take the stand though did he?

      Roger Cook did and he said he didnlt even remember the bloke, so if Fellows wasn’t there, I suppose Hencke could be sure he wasn’t groped, but then if Fellows wasn’t there, how come Exaro got mixed up with him in the first place?

      A victim ‘believed’ by the jurors but not by the media… whatever next.

          1. Hencke said originally it was a case of ‘mistaken identity’and that that he had all the tapes and video films of encounters.

            So presumably he had evidence of a crime? Strange it was never brought up before now, despite what appears to have been a intentional sting going beyond the financial matters.
            And of course, in the light of his current research which began around October 2012 when he facilitated Tom Watson with old Mike Hames (Obscene Publication Squad)files and the Elm ‘list’.

            He could have said immediately, ‘I have compelling evidence relevant to a political VIP ring and here it is’ – before Fellows ever opened his mouth.
            And indeed he could, and maybe should, have approached Fellows for confirmation.

            If that was the case.

            Curiouser and curiouser

          2. Roger Cook was not involved in the early stages of investigations for The Cook Report. He came in once other journalists had done the background work, so he wouldn’t necessarily have come into contact with Ben Fellows. David Hencke, on the other hand, was involved in the Ian Greer investigation from the beginning.

    2. What happened to the video of the incident showing Clarke groping him in Greer’s office? The one the police actually saw?

      As for the burden of proof ..Fellows didn’t have to prove ANYTHING beyond a reasonable doubt. HE was the one on trial! It was the prosecutor’s job to do that ..and he failed! Even with the whole pig circus stacked up against Ben from the get-go.

      People are finally coming out now and exposing these people, and the powerful organisations that (allegedly) stand behind them. Are they all so wrong?

      We only need to look at the Leon Brittan debacle to find the answer to that; how that was hushed up (Allegedly), how the inquiry was set up – headed up by the SISTER of the Attorney General of the time (Allegedly). And, preposterously .. how NOBODY actually interviewed the key witness – before he died ‘suddenly’ of cancer. Seems slightly mysterious to me.

      Shows how seriously the establishment take this (Alleged) repugnant decadence of their ilk.

      People are waking up now. Victims are FINALLY speaking out.

      You’re absolutely right …

      We shouldn’t draw the wrong conclusions from Ben Fellows’s acquittal

  2. Excellent! Many thanks for making this matter clear, because I wasn’t sure what to make of the jury’s decision in relation to what I should be thinking about Mr Clarke in particular.

    All the best.

    1. Wait for the rest of the allegations to come crawling out of the woodwork.

      Then you can really think of Mr. Clarke.

      They’re running scared in Westminster. And not before time.

  3. * Clearly somebody relating a false account in the belief that it is true does not have the all important “intention” to pervert the course of justice and if the jury thought that this was at least a possiblity in Mr Fellows case then a Not Guilty verdict was quite correct *

    The jury presumably couldn’t see why the Prosecution should shift the blame for their own credulity onto a hapless Walter Mitty then? I guess that’s why Steve Messham is still on the loose too. A shame the public doesn’t apply the same logic to what the papers and TV News tells them.

    1. The public weren’t even given the chance. The mainstream media were (allegedly) not there.

      (Out of sight out of mind?)

      Strange that. If Ben had lost, I’m sure it would have been splashed all over the papers, so the public could apply whatever logic they could in the face of poor old Ken being so abhorrently victimized by this poor lad.

  4. Were I somewhat younger and still out at work, I would be wondering how one can ever prove or disprove such allegations. I had some 30 male/female staff working for me at the time when I retired and any of them with a grudge or a fantasy could have made an unsubstantiated allegation of sexual impropriatry against me. What can one do to avoid this?

  5. I must remarkable exercise in the casuistry of squaring the circle and demonstrating that ‘no’ invariably means ‘yes’.
    But one paragraph is certainly worth noting:
    Perhaps the moral of the story is the simple one that memories, whether of alleged victims, politicians or journalists are inherently unreliable. Allegations based on memories alone should always be scrutinised by prosecutors, journalists and juries with great care.

    I hope this will be borne in mind in pending and future historical abuse cases. It’s been completely ignored up to now.

  6. The comments above from Geoffrey Cox strike me as sensible in a debate where commonsense is sometimes lacking.

    Memory is highly subjective. People mis-remember all the time, and usually not (hardly ever in fact) for malicious, fraudulent or nefarious reasons. Personally I would struggle to give an account of my activities last week, yet can remember with reasonable clarity (or at least, so I think) certain events from decades ago – whether due to them being exciting, or pleasurable, or traumatic (the latter meaning in the psychological/emotional sense, I am not, fortunately, a CSA or rape survivor). But even at that, someone else present on same occasions may have a different recollection of X, Y, or Z event to mine – or might not remember it at all.

    Incidentally, there really is no need to ‘syndrome-ize’ this. – If you ask me, ‘false memory syndrome’ is every bit as dodgy and unproven a thesis as the SRA allegations that it aims to counter and disprove.

    1. I couldn’t agree more. The word “syndrome” suggests that having a false memory is some sort of pathological problem. It’s nothing of the sort; it’s just something that happens to human beings.

      1. While I agree to an extent, in that we all misremember events, the term ‘false memory syndrome’ was not intended to denote everyday experience, or a medical condition, but was a shorthand coined to describe a cluster of symptoms characteristic of people, who, having adopted a belief in a ‘hidden history’ to explain their life’s problems, developed a progressive narrative overriding their previous continuous recall and beliefs.

        It was in fact a riposte to the ‘recovered’ or ‘repressed’ memory syndrome being advanced in the civil courts in the US in the 1980s.

        The RMS was advanced by plaintiffs as a reason to set aside the limitation period.

        It was claimed they could not sue earlier because they suffered from ‘a common conidition’ -RMS – whereby they had no conscious awareness of years of childhood sexual abuse until they entered therapy as adults.

        Part of the claim was for therapy and the claimants were usually women in their late 20s and 30s sueing affluent parents.

        This led to sceptical inquiry by research psychologists, because there was no scientific basis for such a ‘syndrome’ and the term ‘FMS’, as a corrective, took hold.

        The term stuck, and was frequently misused, and misrepresented.

        There is a pathological condition of compulsive lying ‘pseudologia phantastica’ but it’s rare – though sometimes ‘multiple personality disorder’patients – who may well have been therapeutically inducted into this condition – display similar traits.

        There are various ‘personality disorders’ related to opportunistic or habitual lying, and some may come to believe their own make-believe.

        The instinctive creativity of the con-man always fascinates me – never better depicted than by Patricia Highsmith in her Ripley characterisation.

    2. “Memory is highly subjective”

      Presumably you apply the same judicious scepticism to the accounts of survivors and ‘witnesses’ of the (Jewish) Holocaust?

      1. Of course. The objective evidence that the Holocaust happened is overwhelming. But any individual survivor’s memory of a particular incident is obviously open to problems of inaccurate memory recall & reconstrucion etc. Even Holocaust survivors can be mistaken.

  7. Matthew, would you be able to shed any light as to possible reasons for not charging Fellows with wasting police time instead, and the key differences between that and perjury?

  8. As far as I am aware, and Matthew can correct if I’m wrong, perjury only applies if someone is found to have knowingly lied in open court. Jeffrey Archer was convicted of perjury in 2000 when he was found to have perjured himself in his libel case against the Daily Star in 1987.

    Your other question is quite pertinent, and I would also be interested in Matthew’s view on it.

    Incidentally, in the meantime, Exaro (The Best News Investigations Website in the World Ever, according to, well, mainly according to themselves and their more vocal defenders/supporters) have revealed that there is another allegation against Clarke, which they have not been able to reveal until now due to the Fellows case.

    I’m increasingly confused by all of this. Where is it all going to end?

    1. Yes, perjury is normally committed when someone lies in court, on oath (or having affirmed). Similar offences under the Perjury Act 1911 can also be committed if you lie in certain formal documents (eg marriage or death registration documents), although these do not include ordinary criminal witness statements. If a deliberately false witness statement is given in evidence (for example because it was agreed between prosecution and defence), a seprate offence is committed under the Criminal Justice Act 1967. Otherwise, a serious lie in a witness statement is likely to be charged as perverting the course of justice, which is a common law offence (it defined by statute). It would also usually amount to the offence of wasting police time under S. 5 (2) of the Criminal Law Act 1967.

      In this case the allegation that Fellows had deliberately lied about the assault by Clarke could have been charged either as wasting police time or perverting the course of justice. The former is a summary only offence (triable only in the Magistrates Court) with a maximum sentence of 6 months imprisonment, the latter is triable on indictment (by a judge and jury) with, in theory, a maximum sentence of life imprisonment – although it is inconceivable that life would ever actually be imposed. The decision as to which to charge would have been made by the CPS. These are the sort of factors (taken from the CPS website) that the CPS regards as making such an offence serious:

      The following factors will be relevant to all public justice offences when assessing the relative seriousness of the conduct and which offence, when there is an option, should be charged. Consider whether the conduct:

      was spontaneous and unplanned or deliberate and elaborately planned;
      was momentary and irresolute or prolonged and determined;
      was motivated by misplaced loyalty to a relative/friend or was part of a concerted effort to avoid, pervert, or defeat justice;
      whether the activities of the defendant drew in others;
      was intended to result in trivial or ‘serious harm’ to the administration of justice;
      actually resulted in trivial or ‘serious harm’ to the administration of justice.

      Examples of ‘serious harm’ include conduct which:

      enables a potential defendant in a serious case to evade arrest or commit further offences;
      causes an accused to be granted bail when he might otherwise not have;
      avoids a police investigation for disqualified driving or other serious offences;
      misleads a court;
      puts another person in real jeopardy of arrest/prosecution or results in the arrest/prosecution of another person;
      avoids a mandatory penalty such as disqualification;

      results in the police losing the opportunity to obtain important evidence in a case.

      Many defendants in Mr Fellows’s position would actually be happier to be charged with the more serious offence because it entitles them to a trial by a jury. The Crown Court is generally regarded as a fairer court and it is certainly one in which – in most cases = a defendant has a better chance of being acquitted.

      Once the CPS concluded that the allegation against Mr Clarke was false then, bearing in mind the seriousness of the allegation, the fact that it was persisted in by Mr Fellows, and the likely consequences for Mr Clarke if a prosecution had resulted, my view is that perverting the course of justice was the correct charge. Wasting police time would – rightly – have been seen as absurdly minor.

      1. Fellows could never have been charged for wasting police time because he never solicited their interest in the first place, on the contrary it was knacker of the yard who relentlessly pursued him, so effectively it was indeed the establishment vs Mr Fellows and hotly pursued by them it was too, so there was only one intended way in this case to deal with the said allegation because it was brought about by knacker with the intention of protecting the establishment – something not lost in the course of summing up by the defence. A very interesting case it was too.

  9. Well, I must be the only thick one here, then. In his defence, Fellows stated he stood by his allegation. In which case why have the police not questioned Clarke on this allegation. A verdict of not guilty on the actual charge plus his assertion that he was assaulted does nothing to make Clarke s position any better than it was to start with…….Id be glad of some views on this…..

    1. They have questioned Clarke on it & they clearly thought he was telling the truth, hence they decided to treat him as a prosecution witness rather than charge him with a sexual assault. A prosecution of Clarke based on the not only unsupported but actively undermined word of Ben Fellows would be doomed to fail; there is no way it could meet the CPS evidential test.

      1. You are assuming too much here, They never questioned Clarke on it – the investigating officer simply paid him a visit and assured him that the next thing fellows will be getting is an early morning visit from a big copper. though in fact it was not quite the way in which fellows was subsequently arrested. Of this I am certain.

  10. The question of how to deal legally with people making such allegations who may be suffering from a personality disorder, a mental illness or just confused memory may arise again quite soon, I believe. I was never entirely happy with the prosecution of Felliws, because to me he is clearly ill. He has history in spinning tall tales in other areas (olympic security) but he appears to take other people’s stories and make them his own. It would have been hetter to get him some psychiatric help and put out a statement saying the investigation into his story had led to no evidence sgainst Clarke. Job done. Or is tjat too simple?

    1. Perhaps the job would not have been done. People would have cried “cover up.” Maybe it’s better that it was aired in public. Those who want to believe in Clarke’s guilt will continue to do so whatever the evidence. More fair minded people have at least been able to see how thin the evidence was.

    2. Erm, interesting comment, it is fair to say that Fellows has had a somewhat colourful splash in his media forays, however it was Mr Clarkes OWN diaries account for that particular day in question that clearly swayed the jury and so in this case it was impossible to convict him as charged. For anything resulting negatively out of this for Mr Clarke it is entirely down to the evidence given and established in cross examination by Fellows defence – by Mr Clarke himself.

  11. Fellows had told so many lies about so many people – which doubtless the jury heard – that they probably think he’s bats.

    Another nutter accused Clarke awhile ago, the jury wasn’t allowed to hear that. Exaro have tried to make something of that. I’ve written to Clarke asking he supports a statute of limitations, but he hasn’t replied yet.

    1. Thought the Exaro move was particularly cheap and pathetic. Hope Clarke responds. He could have sorted this all out with Broxtowe decades back – but he passed the buck.

  12. ‘we know that the prosecution opened the case on the basis that Mr Fellows was a “fantasist.”’

    Er, you mean the prosecution was undertaken on the basis that he was a ‘fantasist’ and therefore could not have intended to pervert the course of justice (because the believed the fantasy) and so cannot be guilty? How does that work? Or were the prosecution trying to argue that he was a fantasist who didn’t believe his own fantasy – and therefore he was not a fantasist? Methinks you have hoisted yourself on your own petard.

  13. It was interesting to read

    ” …defendant is entitled to be acquitted unless the prosecution proves his guilt “beyond reasonable doubt.” These days judges usually direct the jury that they must not convict unless they are “sure,” but it means the same thing.”

    To my mind being sure is a lot less certain than beyond reasonable doubt. E.g. “I am sure I put my car keys there!” is well short of having no doubts about the matter. Maybe others think differently. This recent article is worth reading – the meaning of words relating to probability can be vary drastically between people.

    http://www.theguardian.com/news/datablog/2015/aug/14/how-probable-is-probable

    Judges should be careful making substitutions, I think.

    1. Yes – ‘beyond reasonable doubt’ applies the process of the burden of proof – ‘sure’ not.
      Court of Appeal says the same – BRD too difficult a concept for juries, and judges when asked, say sure means ‘sure’ and is the same as BRD

Leave a Reply

Your email address will not be published. Required fields are marked *