The disc jockey Neil Fox was yesterday acquitted of ten charges of indecent and sexual assault against women and girls. The accusation was that he had committed the offences between 1988 and 2014.
As these things go, the allegations were not particularly serious. They involved unwanted “French” kissing, bottom and breast grabbing and the allegation that Mr Fox had put his hand up various skirts. The worst was perhaps an allegation that he had engaged in sexual activity with a 15 year old girl.
One of the more unusual aspects of the case is that Mr Fox chose to be tried in the Magistrates Court rather than in the Crown Court. This meant that the verdict would not be decided by a jury, but by a bench of magistrates or a (professional and legally qualified) District Judge. In fact, as things turned out he was tried by the Chief District Judge, Howard Riddle and a pair of lay magistrates. This is the Magistrates Court equivalent of a seven judge Court of Appeal. It is very unusual.
All the charges faced by Mr Fox were triable “either way”. Although the Magistrates could have rejected jurisdiction (on the grounds that if convicted their powers of sentence might have proved inadequate) they did not do so. Mr Fox then had a choice: he could stick in the Magistrates Court (“summary trial”) or elect trial by jury in the Crown Court. He decided to put his trust in the Magistrates Court. It was a bold gamble.
The choice of court is a difficult one for the defence. There is one huge point in favour of trial by jury: statistically the chances of acquittal are higher in the Crown Court. Figures vary from year to year, and one needs to be very cautious about interpreting them but CPS statistics show that conviction rates in contested trials in the Magistrates Court are around 62% as against 54% in the Crown Court.1 Most practitioners would advise most clients with a good case to put it before a jury rather than a bench of magistrates. Juries are perceived as less likely to become case hardened and cynical. Jurors are drawn from a wider social pool than magistrates. Trials in magistrates courts can sometimes seem horrendously unfair. For example, the defence may make an application to exclude evidence (let’s say a potentially unfair confession): in the Crown Court the jury almost never hear the legal argument, whereas in the Magistrates Court the magistrates or District Judge has to know about the evidence before ruling whether to admit it or not.
The big advantage of the Magistrates Court from a defence point of view is that their powers of sentencing are less. The most they can impose is 6 months imprisonment for a single offence, or 12 months for more than one offence. (Although the Court can sometimes change its mind after a conviction and commit to the Crown Court for sentencing anyway).
There are other reasons, however, why an innocent man, such as Mr Fox, might wish to be tried in the Magistrates Court. Trial in the Magistrates Court is almost always quicker, and usually cheaper (although in this case both sides engaged leading and junior counsel so the word “cheap” takes on a distinctly relativist flavour). The right to appeal against a conviction from the Crown Court is tightly restricted. Broadly speaking you need to show that some error of law was made during the trial. From the Magistrates Court, however, an appeal does not depend upon finding some legal error: you are entitled to appeal to the Crown Court, and the appeal takes the form of a complete re-hearing: in other words, a second bite at the cherry.
A further possible advantage, is that in the Magistrates Court these days you are entitled to know – at least in outline – the reasons for the verdict. A Crown Court jury never gives reasons for its verdict.
In Mr Fox’s case this last aspect may not have turned out as he had planned. Judge Riddle delivered his verdicts in a lengthy judgment, which can best be described as the opposite of sugaring the pill: embittering the sweets perhaps.
Far from delivering a ringing endorsement of Mr Fox’s character and denouncing the complainants, Judge Riddle made it quite clear that he believed the gist of the prosecution case.
“We heard evidence about 10 allegations from six women. We believed each of the complainants ….
“It was a strong case and one that needed to be brought to the court for determination.”
Mr Fox’s behaviour was – on occasions – “Coarse and unacceptable;” it was “reprehensive” (sic). He caused a young woman to be “belittled and humiliated.”
The picture that emerges of Mr Fox from the judgment is of a rather unattractive character who pushed the limits of sexual “banter” to the very edge of criminality. Mr Fox cheerfully touched bottoms, grabbed breasts, cupped vaginas and in at least one case invited an infatuated teenager (over the age of consent) to fondle his erect penis (he was in his late twenties at the time). Some of this was indecent by any standard, but some of it was arguably just about acceptable at the time – Benny Hill got a mention in the judgment – although it would not be now.
So the question was:
Was the conduct complained of so offensive to current standards of modesty and privacy as to be regarded as indecent?
What did “current” mean? Did it mean he was to be judged by the standards prevailing in the 80s and 90s, or did it mean he was to be judged by the more censorious standards of today. Prosecuting counsel John Price QC argued that he had to be judged by the standards of today. How on earth can a magistrate (or juror), who might not even have been alive at the time, judge what would have been “offensive to standards of modesty and privacy” in 1988? On the other hand, argued the defence, how can it possibly be fair for somebody to be convicted because twenty years later, what had been regarded as acceptable conduct has come to be regarded as indecent?
Fortunately for Mr Fox, the Court agreed with the defence:
“Mr Price says it must be the standards of today, … We disagree. If what Mr Fox did was not a criminal offence at the time it occurred then it cannot become so later because standards of indecency have changed.”
It is an interesting legal question, and perhaps somewhat worryingly for Mr Fox, it remains an open question as far as the higher courts are concerned.
The only honest answer to it is that both the prosecution and the defence were right.
As the Court said, some behaviour would be unambiguously criminal at any time. But where the criminality of the behaviour in question – “Benny Hill type antics” for example – depends upon “current standards” it is not fair to prosecute. It is wrong to ask a court – whether judge or jury – to apply the standards of decades earlier, and it is just as wrong to try historic incidents by contemporary standards.
The reason that Mr Fox might worry about this now, is that if an acquittal by magistrates is based on an incorrect application of the law, it is possible for the prosecution to appeal the conviction to the Administrative Court. They have 21 days to decide if they wish to do so. That takes us to the 3rd January. I think they would be wrong to appeal, but I can see how they might. Mr Fox may yet have an uneasy Christmas.
So has his bold gamble to elect summary trial paid off?
Well, the object of the exercise was to secure his acquittal and that has been achieved. On the other hand he can hardly claim the acquittal as a vindication of his character: he has been judicially branded as someone who has engaged in unacceptable sexual behaviour and someone who has been prepared to lie on oath. It is closer to a character assassination than a vindication. And if the prosecution decide to appeal, it is just possible that he may still come to rue the day he chose to put his fate in the hands of Magistrates.
1See Andrew Ashworth & Mike Redmayne The Criminal Process OUP 2010 ed. p.324