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.