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.
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 !
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.
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
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.
No effect on what you should be thinking about Ben Fellows then?
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.
An interesting reflection Matthew. I think I had better ask KC to join FACT!!
* 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.
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.
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?
How did you change a story about a man accusing another man into it being about women?
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.
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.
“Memory is highly subjective”
Presumably you apply the same judicious scepticism to the accounts of survivors and ‘witnesses’ of the (Jewish) Holocaust?
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?
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?
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…..
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?
You’re the only one that need ‘psychiatric help’. Wanker.
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.
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.
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.
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‘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.
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.
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
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I’ve found your take very interesting.
Firstly, I really don’t know just how much of this case you know.
Ben was threatened and had to leave the UK. On his return, he was going to stand as an MP against Mr. Clarke.
Mt. Clarke has a dubious relationship with the UK registered charity Bilderberg, along with the author of Article 50, lord John Kerr.
As the Brexit pantomime plays out, make of this case what you will.
Thank you for time.