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.
10 thoughts on “DLT and Bill Roache: Is the Crown Prosecution Service obsessed with political correctness?”
Section 14 of the Sexual Offences Act 1956 isn’t common law
Thanks Alison. Corrected. A bad mistake which shows why you’re the DPP & I’m a jobbing hack!
Technical point: You need to fix your date format to British. At the moment your page says “Posted on 02/13/2014”, which is the (illogical) American format, and will become ambiguous on the first 12 days of every month.
I know, I know – I’m just hopeless at the technicalities of it! But I think I’ve just managed it. Many thanks.
I think the problem comes with similar fact law. This encourages prosecution-by-collecting-allegations and then the trial becomes a mud slinging exercise and the investigation becomes simply touting for complaints. Some of the Roache complaints do not even seem to have been slightly investigated – e.g. the statement that the actor playing ‘Mike Baldwin’ warned the complainant off, supposedly or the Rolls Royce that wasn’t owned till 20 years later.
The Police and Investigators know that their complainants are often at kindest dubious. “I can’t remember it”. So they don’t look and just rely on ‘no smoke without fire’ which has now unfortunately been given legal authority.
The ‘myth-busting’ is aided and abetted by the Crown Court Benchbook model ‘directions’, supposedly based on the ‘experience of the courts’ but in fact lifted from a talk by victim advocate Dr Fiona Mason. The ‘trauma’ direction in particular excusing inconsistencies and memory gaps is circular and presumptive. The jury is directed that the ‘trauma’ of sexual assault/rape may cause inconsistencies in memory recall etc, thus if they think the complainant was ‘traumatised’ then they can take this into account. But in order to do so they have to accept that the offence took place causing the ‘trauma’ which in turn led to the inconsistencies – which they can then discount. Effectively this lowers the standard of proof. A jury cannot know whether a complainant is ‘traumatised’ – that would be a matter for expert evidence which is not permitted in this instance as being generic ‘profile’ evidence – oath helpling. All they should be able to do is assess the evidence for and against on its own terms. Significant inconsistencies in a complainant’s evidence may or may not indicate falsity – but where this is effectively the only evidence for the prosecution a jury cannot be sure to the requisite standard that the allegation is true. This is not equivalent to the direction that a the lapse of time
may prejudice a defendant and that his/her memory may be impeded, because the burden of proof is on the prosecution, not the defence. If a defendant says one thing in a police interview and another later – he is said to have lied and will receive a Lucas direction whereby the lies may be used against him (with caveats) . A complainant on the other hand is given the benefit of being ‘traumatised’ so that ‘inconsistencies'(not ‘lies’) can be used to support the prosecution case despite the BOP being on the prosecution. These ‘myth-busting’ directions are potentially highly prejudicial – and what’s more – are not based on the ‘experience of the courts as to victims’ – at a best they are based on the experience of the courts as to complainants and guilty verdicts. But in fact they are simply lifted from Dr Fiona Mason’s paper. – whose objective is to increase the number of rape convictions based on patients diagnosed with PTSD (it’s the child/adult sexual abuse accommodation syndrome). The same fallacy is now woven into the new CPS guidelines on prosecuting sexual offences.
I was a MOP at a trial where a wife alleged assault by the husband (allegedly he beat her with his fists). The husband claimed she assaulted him and he acted in self defence only with suficient force to remove himself from the situation and the assault.
The wife’s witness statement admitted she assaulted him. The only other witness for the prosecution was supposed to confirm the the assault by the husband, but that version of events not only contradicted the wife’s evidence but was a physical imposibility. The wife was not injured nor even marked by the beating she was supposed to have recieved and there were no marks on the husband’s fists that he was supposed to have used on her. The only injuries from this event were sustained by the husband, and the location and pattern of injury backed up his version of events. There were numerous contradictions between the police notes, witness statements and their verbal evidence. (When the Defence questioned the contradictions from the witnesses and the attending Police, their answers were ‘I don’t know/don’t remember’). He was found not guilty by reason of self defence.
So why did the police arrest and CPS prosecute? Who knows, but I cannot see how it was a result of a realistic hard appraisal of the evidence. I suspect it had lot to do with recent bad publicly surrounding the police and CPS failures to ‘protect victims’. It is the only explanation of their their willingness to prosecute what I saw as an unwinnable case.
Margaret is exactly right. It is quite deliberate. The most outrageous errors are routinely ignored (see Roache for example). The classic example of police behaviour is the case of Anver Sheikh ; rather than prosecute the claimants for perjury the Police helped them ‘fix’ their story and successfully reprosecuted Mr Sheikh (he was let out later after yet more obvious dishonesty the Police couldn’t be bothered to check was found).
Many of these prosecutions are historic of parents and carers. It is actually far more likely a teacher or carer would make an error ; a teacher or carer sees far more children than a child sees teachers or carers.
These farces have been going on for years. Savile et al have simply brought it more into the limelight. It is often simply a collusion between corrupt and dishonest Police attempting to justify their existence, criminals after money, and the mentally damaged who will pretty much say anything on demand.
At last, a blog that mentions the ‘Evidential Test’, the ‘CPS code of Practice’ and, better still, mentions Sir Jimmy Savile NOT ONCE – Thank You !
In the general run of Crime there is always an obvious victim of crime isn’t there. If someone is beaten up, they carry the injuries. If their house is burgled they have stuff missing. He or she is not just a complainant they ARE a victim. Even if we eventually deem the accused as unable to be deemed guilty beyond a reasonable doubt, the victim remains a victim. Of a crime.
Had Sir Jimmy Savile been prosecuted in 2009, and assuming his not guilty plea, then the court and jury would not really have been weighing up whether or not he was guilty, but rather, they would have been determining whether any crime had occurred at all. If no crime was deemed to have been committed then there could be no longer be a victim, and therein lies the rub. In order to find a person not guilty of an historical crime, we are forced to call the claimant a liar, because what we are actually saying is: the crime never happened – thus – the complainant made the story up.
This changes the whole moral basis for the jury quite considerably doesn’t it, because in order to find one person innocent they are forced to find another person “guilty”, whether that is what they want to do or not. What happens if they feel they have a reasonable doubt about both claimant and accused?
This fundamental difference seems to me to be a major fault-line for British justice. If there is no evidence other than testimony, how on earth is a jury to form a judgement on such a divisive matter. Without some objective evidence, on what basis can the jury make the decision? Toss a coin? Stick pins in a doll? Decide who is the best actor? Or wait for tired, helpless people to plead guilty, just to get the whole hopeless thing over with.