Never mind rape myths, the criminal justice system is built on even more fundamental myths

These days no prosecutor is considered properly trained until they have attended a course to warn them sternly of the dangers of believing “myths and stereotypes” about sexual offences. The CPS website lists 10 such myths (defined as “a commonly held belief, idea or explanation that is not true”), including, for example:

“Rape occurs between strangers in dark alleys” (obviously it occasionally does, but the myth is that it only or mainly occurs in that way).

Or

“You Can Tell if She’s ‘Really’ Been Raped by How She Acts” (when, as the CPS correctly points out, reactions to rape are “highly varied and individual.”)

It is all to the good that any myth should be expunged by the cauterising effect of truth, but there are even more fundamental assumptions underlying the whole criminal justice system. They are these:

1. Jurors can safely rely on the memory of an honest witness;

2. Jurors can safely assess when a witness’s memory is mistaken;

3. Jurors can safely assess when a witness is lying.

Unfortunately each one of these assumptions is a myth: a “commonly held belief that is not true.”

In 1877 a man with the unremarkable name of John Smith was sentenced to 5 years’ imprisonment for fraud. His modus operandi was to befriend women “of loose character,” telling them that he was “Lord Willoughby” of St John’s Wood. Having thus gained their confidence he would then ask to borrow money or an item of jewellery. Naturally they would happily agree, whereupon Smith, and the valuables, would disappear.

Smith was released from gaol in 1881.

Thirteen years later, in 1894, police started to receive reports that a “Lord Winton de Willoughby” of St John’s Wood was carrying out almost identical frauds – again on women of “loose character.”

The following year a blameless Norwegian, Adolf Beck, was accosted in the street by one of Lord Winton’s victims, Ottilie Messonier. He protested that he had never seen her before, but she found a police constable who immediately arrested Beck. He was taken to the police station and charged on the basis of Messonier’s allegation.

Soon other women started, as today’s cliché would have it, to “come forward.” They were shown Mr Beck, and fifteen insisted that he had stolen from them. Then the police officer who had arrested Smith in 1877 also asserted that he recognised Beck as being one and the same man.

Beck was tried, convicted and sentenced to seven years penal servitude.

The details of how he came in due course to be pardoned need not detain us. It was conclusively established that despite the confident assertions of numerous witnesses, Beck could not have been Smith. The latter’s prison records showed that he had been circumcised, whereas Beck had not.

The case led to a Parliamentary Inquiry, which in turn led to the establishment of the Court of Criminal Appeal, but cases continued to be successfully prosecuted on the basis of what would now be regarded as the flimsiest of identifications.

Despite the clearest evidence to the contrary, for more than 60 years the courts continued to operate on the assumption that eye-witness identification evidence was inherently reliable. Dock identifications, confrontations and crudely improvised identification parades formed part of many criminal trials. As late as the 1970s in one example¹, the defence objection to a proposed dock identification were over-ruled with a judicial ruling that an impromptu identity parade could be carried out in court by sitting the defendant amongst the jurors in waiting. In the event the witnesses in question had already seen the defendant, both in the magistrates’ court and by peering through the glass doors of the Crown Court as he stood in the dock for arraignment. The trial went ahead anyway and the defendant was duly convicted. Subsequent investigation revealed a cast-iron alibi.

The case was one of two that led to the establishment of the Devlin Committee on Identification Evidence in Criminal Cases, and following Lord Devlin’s report to the seminal case of R v. Turnbull & others [1977] 2 Q.B. 224. A five judge Court of Appeal headed by Lord Chief Justice Widgery issued the now familiar guidelines on how the courts should treat such evidence.

Judges are instructed to warn juries:

“of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken.”

There is still room for complacency, but it is virtually certain that Turnbull, and an evolving Code of Practice for conducting police identification procedures under the Police and Criminal Evidence Act 1984, have cut the numbers of people wrongly convicted as a result of mistaken identifications.

The common assumption since Turnbull has been to believe that identification evidence falls into a separate category, and other eye-witness evidence is still generally admitted without any judicial warning.

So whilst juries are routinely told that an honest but mistaken identification witness can be convincing, no such warning is given in other cases which depend on a witness’s memory. Nor are juries told to look for corroboration of a single witness’s account. This is despite modern psychological research having shown that the ability to memorise is highly variable between individuals, and that memories themselves are imperfect, changeable and unreliable.² As Elizabeth Loftus vividly put it:

“Our memories are constructive. They’re reconstructive. Memory works … like a Wikipedia page: you can go in there and change it, but so can other people.”

As with identification witnesses, ordinary eye-witnesses can be honest and convincing but still mistaken, particularly when attempting to remember details months or years after the event. In fact it is almost inevitable that witnesses will be inaccurate. Yet unless a case turns on evidence of identification, no judicial warning is given and no special rules on admissibility exist when cases turn on a witness’s memory. The warning that it was dangerous to convict on uncorroborated evidence in sexual cases – admittedly an anomalous and needlessly technical rule – was abolished in 1994.

Jurors are also routinely invited to decide who is telling the truth in circumstances in which the ability to make a safe (or “sure”) decision is simply impossible. The myth here is that jurors are able to spot a lying witness simply by watching and listening. Again, the psychological research is clear: it can’t be reliably done. Study after study has shown that most people perform the task at best slightly better than chance.³

No recent case better illustrates this than that of David Bryant, a retired Chief Fire Officer who was convicted of historic sex offences and imprisoned on the uncorroborated word of someone who was later, after an enormous amount of work by a team of barristers and private investigators acting pro bono, revealed as a compulsive liar. Understandably, Mr Bryant has called for an urgent review of the way that similar cases are prosecuted. He was right to do so, not least because neither the Crown Prosecution Service nor the Court of Appeal seems in the slightest bit troubled by the problem.

Mr Bryant’s case is far from unique. The occasional exoneration of the innocent cannot muffle the cries of pain from those convicted on similarly uncorroborated and potentially unreliable evidence. Many may well be guilty; but many may also be innocent. We simply cannot tell which is which. It is even more difficult to do so when the resources available to defence solicitors have been cut to the bone, a point that has recently been taken up by Sir Henry Brooke, the retired former head of the Law Commission and Vice President of the Court of Appeal,⁴

Sir Henry is one of the very few senior judicial figures even to acknowledge the existence of the problem. As far as today’s Court of Appeal is concerned the verdicts of juries are sacrosanct, and the law is clear: juries are entitled to convict on the uncorroborated evidence of a single witness. As Lord Judge C.J put it in R. v. Barker [2010] EWCA Crim 4; [2011] Crim L.R. 233:

“… it is open to a properly directed jury, unequivocally directed about the dangers and difficulties of doing so, to reach a safe conclusion on the basis of the evidence of a single competent witness, whatever his or her age, and whatever his or her disability”.

The reference to juries being “unequivocally directed about the dangers of doing so,” rings hollow: there is no legal requirement that juries should be given any sort of warning about convicting on uncorroborated evidence. Instead, today’s judges are more likely to warn of the dangers of belief in a “rape myth” leading to a witness not being believed. And the notion that even historic prosecutions dependent on a single witness might amount to an abuse of process was seemingly squashed for good by the same Lord Judge in R v. F (S) [2011] 2 Cr. App. R. 28.

Questioning the ability of courts to return safe convictions on uncorroborated evidence would, of course, open up another “appalling vista.” It would throw many convictions into doubt and undermine the complacent myth that we have the best justice system in the world. Yet the truth should be blindingly obvious: juries cannot always rely on the uncorroborated memories of the honest, and cannot safely be relied upon to detect the lies of the dishonest. The convenient fiction that they are able to do so means that some criminal trials are little better than grotesque games of chance. As a result, an unknown number of innocent people are almost certainly languishing behind bars.

The random sacrifice of the innocent in order to ensure the conviction of the guilty should not be acceptable in a civilised system of justice.

This article first appeared in the Criminal Bar Quarterly Autumn 2016