Rape juries: Jolyon Maugham hits the wrong target

Last month Britain’s favourite tax barrister, Jolyon Maugham QC, suggested in an article in the New Statesman that juries ought to be abolished for rape trials. I had meant to reply to him much earlier, but did not have the time to do so until now.

As he is in some ways a stickler for accuracy I should quote him:

These few hundred words are not the place to remake the system by which rape is deterred. But we might start by asking, as Julie Bindel has urged, whether trial by jury serves the public interest in rape cases.”

I don’t think he is quite advocating the abolition of juries for rape cases, but he is certainly suggesting that it is something that should be discussed. Indeed, trial by jury, he says, is the place to start.

He was immediately criticised by some criminal lawyers for stepping outside his area of expertise. Not by me though; not least because my limited expertise as a criminal lawyer has never stopped me offering my thoughts on any number of other subjects, some of which are only vaguely related to the law (I can’t help you with tax avoidance though). Mr Maugham’s insights into what is undoubtedly a thorny area should be entirely welcome.

I hope he won’t object – though I fear he may – if I try to summarise his argument a little further.

  • Men who rape or sexually assault women should be punished;
  • Thousands and thousands of women are sexually assaulted and raped every year;
  • Only a tiny proportion of such cases result in a conviction of the men responsible;
  • Therefore something must be done;
  • The thing we should be thinking about doing is to abolish juries for sex cases.

Mr Maugham bolsters his arguments with lots of statistics but that is the thrust of his few hundred words. “The status quo,” he thunders, splendidly unafraid of cliché, “is not an option.” One of the few other options that he does hint at is that we should be less squeamish about convicting the innocent:

It is not good enough for us to repeat the saying that it is better for ten guilty men to escape than one innocent man to suffer.”

Since his argument rests heavily on statistics it is rather unfortunate that he has been careless with them.

What is the truth?” he asks, before telling us:

Every year there is a Crime Survey for England and Wales. It gives a “better reflection of the true extent of crime… than police recorded statistics”, according to the Office for National Statistics. The Survey for 2017, published only a week ago, reported almost 51,833 offences of rape and 93,564 other sexual offences in 2017 alone. And these figures exclude the rape or sexual assault of children under the age of 16.”

Except this isn’t the truth. It’s a mish-mash of figures that Mr Maugham hasn’t looked at properly, or at least hasn’t understood. He is certainly right that the Crime Survey is regarded as a better reflection of the true extent of crime than police statistics. Unfortunately, the figures he quotes (including the imprecisely precise “almost 51,833”) are in fact police figures for reported sexual offences, not CSEW figures at all (see Appendix Table A4 in the linked document). Nor are they a reflection of “sexual offences in 2017 alone” for they include a large number of historic cases only reported to the police in 2017. As the rather dry language of the ONS puts it:

For a subset of forces providing data to the Home Office Data Hub, 26% of sexual offences recorded by the police in the year ending December 2017 were non-recent offences (those that took place more than 12 months before being recorded by the police).

Police Recorded Crime (sexual offences) 2016 – 17 (abbreviated for reasons of space)

Nor, as he asserts, do they exclude figures for the reported rape or sexual assault of children; they include 15,683 such rapes, and at least 36,000 sexual offences against children, and probably many more (although the way the statistics are collated makes it difficult or impossible to be more precise).

Back to Mr Maugham, and what he says is “the truth.”

In 2013, an overview of sexual offending conducted by the Ministry of Justice, the Home Office and the ONS, and using Crime Survey data, concluded that although there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.

This is an extraordinary thing. Based on the above figures, a person who is raped has between a 1.1 and 1.8 per cent prospect of seeing their rapist convicted.

This is, at best, a half truth. The 2013 report was based on figures from 2009 – 2012. Perhaps we shouldn’t worry too much about the somewhat slippery elision between past and present tense. More important is that Mr Maugham has presented the statistics, which are indeed drawn from the report, in the most alarming way without paying any attention to the warning prominently displayed in the 2013 report itself:

… one method of calculating rape conviction rates often used by commentators shows the number of people convicted of rape as a proportion of all rape crimes recorded. Given the different currencies of the two number[s] and the effect of downgrading of offences through the CJS mentioned above, this method is incorrect and misleading in terms of presenting evidence on convictions for rape.”

Presenting statistics in this way is not “the truth” at all, it is “incorrect and misleading.”

Now it would be fun to continue to scold Mr Maugham for sloppy use of statistics and general carelessness, but that would be to miss the point. He would then probably accuse me, as he regularly accuses people, of “failing to engage with the argument.”

And in a way he would be right. Although he is careless in the figures he cites, had he picked the latest CSEW statistics (as he thought he was doing) his argument might even have been strengthened; the Survey always estimates more offences than the police figures, for any type of offence including sexual offences, because many offences are never reported to the police.

He does make one startling assertion which actually is based on the CSEW figures, although for a different period (y/e March 2017):

“A full fifth of women have been sexually assaulted since turning 16.”

It is certainly a very depressing statistic but we need to interpret it with a little caution, and it turns out not to mean quite what it appears.

According to the CSEW estimate (it’s Appendix Table 1 if you follow the link), 20.3% of women aged 16 – 59 have experienced “sexual assault” since they were 16. That was the origin of Mr Maugham’s “a full fifth of women have been sexually assaulted since turning 16.” We can leave on one side the small and rather picky observation that the figure includes “attempted” sexual assaults, which are not, by definition,  sexual assaults. The more important point is that the CSEW definition of “sexual assault” includes “indecent exposure and unwanted touching.” Whilst 6.4% of women are estimated to have been victims of “rape or assault by penetration (including attempts)” a much higher proportion (19.2%) had been the victim of “indecent exposure or unwanted touching.” Indecent exposure is not an assault at all (although of course it may often be very frightening). As for “unwanted touching,” the actual question asked by the CSEW is this:

Since you were 16 has anyone ever touched you in a sexual way (eg touching, grabbing, kissing or fondling), when you did not want it?

Being kissed or touched “when you did not want it,” or unwanted touching, is not the same as being sexually assaulted. Sexual assault in law requires the absence of consent, an ingredient which is not required by the CSEW (although confusingly it is required for police recording purposes). Only by using this broad definition of sexual assault and then lumping “sexual assaults” together with indecent exposure do we reach the “full fifth of women have experienced sexual assault.”

Now whether the figure for sexual assaults is 6.00%, or 20%, or somewhere in between, it is, of course, far too high. We can all agree that it needs to be reduced, preferably to zero. But we should at least start with as accurate a picture as we can get.

As I want to stress, Mr Maugham has not deliberately picked the most alarming statistics. He has just got confused amidst the swirl of figures from different sources, and in doing so he has actually missed the CSEW figures which suggest an even higher number of rapes than his “almost 51,833.”

So, what does the CSEW actually say about the level of sex crimes?

There are no figures yet for the whole of 2017. For the latest we have to go back to March 2017.

In the 12 months to March 2017 the CSEW estimate for the number of sexual assaults on women was between 447,000 and 573,000 and for rapes or assault by penetration on women it was between 110,000 and 178,000, with an estimate of 144,000 . These figures do exclude children under 16 (and also adults of 60 or over), and they are hardly reassuring: indeed they suggest a level of rape and serious sexual assault far higher than the police figures Mr Maugham erroneously attributed to the CSEW, although as they do not distinguish between “rape” and “assault by penetration” the estimate of the actual numbers of rapes is rather vague. Are there twice as many assaults by penetration as rapes? Or three times as many rapes as assaults by penetration? Perhaps it doesn’t really matter, and your guess is as good as mine and quite possibly rather better than Mr Maugham’s.

One of the main reasons for the difference in the figures is that most sexual offences are never reported. In fact most crime of all types is never reported (the overall reporting rate is estimated by the CSEW at about 40%). The reporting rate for sexual offences is, however, particularly low: just 17% of respondents to the CSEW who said that they had been the victims of rape or assault by penetration said that they had reported it to the police, against an average reporting rate of 42% for all crime. (Only the reporting of some types of theft are lower. Virtually nobody, it seems, reports street thefts, for example).

The reasons given by the 83% from the CSEW sample who did not report rape or assault by penetration to the police varied enormously. The actual sample of “non-reporters” for 2016/17 was small (just 321 people, almost all women), but the same reasons have consistently been given over the years.

Embarrassment” was the reason given most often, 47%, followed by nearly 40% who “didn’t think the police could help.”

Not wanting to go to court” was given as a reason for not reporting by only 21%, only just above a surprising 19% who thought that the matter was “too trivial” to report, and 10% that it was a private matter or “none of the police’s business.” Another 8.8% didn’t want the perpetrator to be punished. Presumably there was some overlap here with the 18% of victims of rape or assault by penetration who believed that what had happened to them was either “wrong, but not a crime” or the 8% who took the phlegmatic attitude that it was “just something that happens;” perhaps Germaine Greer was amongst them.

I’m not quite sure what all this tells us, and as we have seen it’s very easy to over-interpret, or wrongly interpret, the results of a survey like this. Nevertheless, it does not provide particularly strong evidence that having to face a jury is putting people off making complaints of rape.

Unexpectedly perhaps, and contrary to the widespread belief amongst the general public and victims of sexual assault, when rapes were reported the police did not demonstrate “a culture of disrespect, disbelief and disregard towards rape victims” as, for example, the feminist commentator Julie Bindel (cited approvingly by Mr Maugham) and others have long argued; indeed the assumption that the police will be sceptical and insensitive is so often asserted that it might almost be considered a rape myth. Yet according to the CSEW, 75% of those who did report the crime to the police found them on first contact either “very” or “fairly” helpful, with only 13% finding them “not at all helpful.” The numbers finding the police helpful “during the investigation” fell a little, but only to 62%.

Moreover, the number of sexual offences reported has been increasing dramatically in recent years. The 2013 report to which Mr Maugham makes reference was written on the basis of figures collated between 2009 and 2012. In October 2012 Operation Yewtree was launched. This is what has happened to reports of sexual offences since.

Anyway, although Mr Maugham is wrong about some of the figures he quotes, and ignores hugely significant changes since 2012, there is still no question that women who have been sexually assaulted are much less likely to report the crime than those who have been the victim of other crimes. What is to be done about that?

I would suggest that before looking at the institution of jury trial it might make sense to look at what the statistics suggest are far more significant issues.

The avoidance of embarrassment is a remarkably strong human motivation. In a different context, embarrassment is the main reason why women do not attend for cervical smear tests, and it is a potent reason why men are sometimes willing to risk an early death rather than undergo embarrassing tests for prostate cancer. Reporting a rape is likely to be of an entirely different order of difficulty. “Embarrassment” doesn’t really do it justice. As Dame Elish Angiolini’s 2015 Review into the investigation and prosecution of rape in London noted:

There was a perception that the word ‘rape’ carries a stigma that other types of personal violence, such as being mugged, do not share. One victim described society’s attitude towards rape as ‘negative’. She had not reported being a victim for fear of the potentially adverse impact on her life. Others suggested that rape is ‘taboo’, a view expounded upon by a woman who was the victim of an archetypal serial stranger rapist. In a letter to the review she explained,

Even some friends and family found it extremely diffcult to deal with me after it happened and I was shocked by the ignorance and insensitivity I encountered. I realised that rape is still a very misunderstood crime and, because it is such a taboo subject that people prefer not to think or talk about, it became and remains my ‘dirty, little secret’. The fact that a victim accepts anonymity – something I did not for myself but to protect other members of my family – just adds to that sense of secrecy and hidden shame.’

And of course these difficulties are massively exacerbated if reporting a rape is going to have an explosive effect on the victim’s personal life, as it well might. Again, Angiolini’s report is worth quoting:

Complainants who had experienced sexual abuse from their partner or husband described additional barriers to reporting such as feeling unsafe, trapped in the relationship and not having the economic and emotional resources to deal with their situation. … One victim from a minority ethnic background told the review that since reporting rape to the police, she is regarded by her sister as the wrongdoer and of bringing shame on the community, something regarded as worse than the rape. In her family’s opinion she should have forgiven the perpetrator and kept silent. The review also heard that some communities do not recognise the concept of a woman’s right
to withhold consent to sex within marriage.”

Embarrassment” fails to describe the complex set of reasons why reporting a rape might be perceived by a victim as worse than keeping silent. The law does some important things to alleviate it, and no doubt it could do more: complainants are anonymous, whatever the outcome of their complaint, for example (although that very anonymity rule might also contribute to a more general perception that being raped is something that should be kept as a secret). NHS sexual offence referral centres (“Havens”) in London and other cities have supported rape victims. There is an absolute imperative that police officers should be properly trained, sensitive and non-judgemental. But there is, I am afraid, no way of altogether removing the embarrassment of the intimate examinations, swab taking, photographing and other invasive but essential components of evidence gathering. Nor is there any alternative to telling someone what has happened,which many people are always going to find difficult and others, perhaps, too hideously embarrassing (for want of a better word), to talk about. Nor can there be any guarantee that your account will be believed, because sometimes accounts of rape are false.

I do not have any simple solution to the problem that many women who have been raped feel unable to report it to the police. But there is little evidence that it has to do with rules of evidence or courtroom procedure or trial by jury.

A close second given as the reason for not reporting is the belief that “the police won’t be able to help.” This seems to be a widely held view, indeed it is almost an orthodoxy amongst some. Yet again, it isn’t true. As we have seen a clear majority of those in the CSEW sample who actually complained found that the police did help.

There is no need for the police to be ordered to believe every complaint. All that is required is that every complaint leads to a fair, sensitive and open-minded investigation. We are unlikely ever to reach a situation where every complainant will find every police investigation “helpful,” and nor should we expect that outcome. sometimes the police will bungle it, sometimes the complainant may have unduly high expectations of what the police are able to do, and sometimes the complaint may turn out not to be true. But it is entirely counter-productive to make the lazy assumption that the police who investigate sex complaints are necessarily going to be “Life on Mars” sexist Neanderthals, or indeed credulous fools. My own experience (for what little it is worth) is that most officers investigating serious sexual offences are sympathetic, fair, and determined to try to do their jobs properly.

What of the 21% who gave “not wanting to go to court” as a reason for not reporting? We don’t actually know what it is about the prospect of going to court that deters them. There are lots of reasons for not wanting to go to court: speaking in public, inconvenience, further embarrassment, spinning out a horrible experience over months or years, fear of being disbelieved, fear of cross-examination. All these are inherent in an adversarial (or even an inquisitorial) legal system. We can mitigate them, and have done a great deal to do so in recent years: complainants in sex cases are almost always interviewed in a calm and relatively informal way on video by police officers, and those interviews are almost always used as the primary evidence at trial. Although some choose to go into the witness box, they are entitled to be cross-examined by video link, avoiding the need to go into the court room at all. Evidence about “sexual history” is only allowed in a small minority of cases where to exclude it would make the trial unfair; a generalised inquisition on a complainant’s sex life is completely forbidden. Witnesses considered vulnerable (perhaps because of learning difficulties or mental health problems) may be given “intermediaries” to help them communicate better. If these facts were better known, it might be that fewer than 21% would find the prospect of court a deterrent.

What about the “attrition” rate after a complaint is made?

It is another huge subject, largely beyond the scope of this blog, but there are innumerable reasons why a complaint to the police does not result in an arrest, a charge or a conviction. 22 of them were set out by Professor Phil Rumney, a Bristol criminologist specialising in the study of sexual offending. I can’t do better than the repeat them here. His point is that attrition “is not all about criminal justice system failure.”

  1. The complainant reports with no wish for a police investigation.
  2. The complainant reports but decides not to do a victim interview.
  3. The complainant reports & s/he decides specialist help/practical support is preferable to a criminal investigation, at least for now.
  4. The complainant is uncertain or confused. Even after investigation it’s not clear what has happened and there is no basis for criminal prosecution.
  5. The report does not legally constitute rape.
  6. The report is contradicted by other evidence.
  7. Equally credible accounts are given by complainant & suspect and there is no other evidence.
  8. Suspect cannot be found
  9. Suspect is dead
  10. Reported by a 3rd party, but the complainant who disclosed does not wish for the case to be formally investigated.
  11. The complainant wants to move on
  12. The complainant decides s/he cannot cope with the criminal justice process at this time.
  13. The complainant is worried that family members or friends might find out about the rape & has general anonymity concerns.
  14. Withdrawal from the investigative process (many, many reasons for this, some listed above).
  15. A recorded offence of rape is cancelled or transferred in line with the Home Office Counting Rules
  16. Retraction of the allegation because it is untrue.
  17. Retraction of the allegation resulting from intimidation/manipulation by the suspect or 3rd party.
  18. The report includes a false account that is so significant it undermines the complainant’s credibility as a witness.
  19. The case does not meet the CPS test for charging.
  20. CPS discontinues the prosecution.
  21. Jurors acquit on the basis that the standard of proof is not met.
  22. Jurors acquit because they conclude that the defendant has a reasonable belief in consent.

Prof Rumney’s list was not contained in an academic article and he certainly does not claim that it is comprehensive. 21 and 22 are really the same, and he misses out (for example) the situation in which the judge stops the trial at the end of the prosecution case because the evidence, even if accepted in full, fails to prove an essential element of the offence. The point is that there are innumerable, often good, reasons why a rape allegation may not lead to a conviction. In some cases the complainant may not “get justice” but in others “justice” means that the suspect is not charged or is acquitted.

But let’s go back to Mr Maugham’s article. It is a cry of rage against a justice system that he says “allows men to rape with impunity.” Towards the end of it he hints at some solutions, none of which actually directly address the biggest issue which is “why are women are generally reluctant to report sexual assaults?” His focus zooms in on the legal system in general and trial by jury in particular.

… the system is a pyramid – and at its apex sits criminal trials. The consequence of a criminal law that operates to convict only in cases with very particular features is entirely predictable. The infrastructure around that law will bend itself only to the task of finding cases with those features.”

Mr Maugham is very good on denunciations, he is less sound on evidence to back them up. He produces no evidence that the outcome of trials follows from “preconceived ideas of how women should behave or the correct response to sexual threat.” He seems to be blaming the criminal law, but how exactly? It is all rather mysterious. What does he mean by a law that “operates to convict only in cases with very particular features”? What these “very particular features” might be we can only guess at. A recent complaint? Certainly not; many, many cases are not reported until decades later and they often end in conviction. Corroboration? No, that requirement (which was in fact never an absolute legal necessity) was abolished more than 20 years ago. Does he mean that juries won’t convict unless the complainant was sober, or a “stranger,” or attacked in the street, or suffered physical injuries? If so he is talking nonsense, as a week spent in any Crown Court would make clear. Hardly any cases conform to that stereotype, yet juries convict quite readily anyway.

Should the burden of proof be shifted, so that an absence of consent is presumed unless the defendant can prove the contrary? Such a radical idea is not as unthinkable as it may sound and has been made for example, by the New Zealand Labour Party’s sexual violence spokesperson Poto Williams; but if Mr Maugham supports the idea he has not articulated it. A more subtle, but still very fundamental, change in the law has been floated by Simon Myerson QC who has suggested a new and less serious offence of “taking sexual advantage” where actual consent would no longer be relevant and a defendant could be guilty where he failed to take reasonable steps to ensure that consent was voluntary and informed. We don’t know whether that is something Mr Maugham would support.

The only actual suggestion he comes up with is to take a leaf out of Julie Bindel’s book, or rather her Guardian article:

… we might start by asking, as Julie Bindel has urged, whether trial by jury serves the public interest in rape cases. The outcome of trials must follow from the evidence rather than preconceived ideas of how women “should” behave or the “correct” response to sexual threat.”

Ms Bindel approaches the problem from a very radical angle indeed. In 2006, writing about a case in which a young woman who had complained of rape was instead cautioned for perverting the course of justice, she said that if more such cases occurred:

we may as well forget about the criminal justice system and train groups of vigilantes to exact revenge and, hopefully, deter attacks.”

It’s unlikely that Mr Maugham, a respected Queen’s Counsel, is supporting special training for revenge-exacting vigilantes. I suppose if we are to have such a reform it would be as well for the vigilantes to be trained to be free of all prejudices. But it is more likely that he has in mind Ms Bindel’s more “moderate” suggestion that juries should be replaced by “specially trained judges.”

It is still an appalling idea, and one that does not even address (or as Mr Maugham would put it “engage with”) the problem that he has himself outlined. If he really does support it – he has been rather coy and can be hard to pin down – it would confirm the suspicions of some that his egalitarianism conceals an unattractive elitism.

It would mean a dagger to the heart of trial by jury. If juries were no longer trusted for rape cases, then it would make no sense for them to be trusted in any sex cases. Although there do not seem to be any reliable statistics for what proportion of jury trials concern sexual allegations, my guess is that it is well over 30%. Once juries go in sex cases, it would make no sense to keep them in large fraud cases: after all if untrained people are not trusted to make judgements on matters of sexual behaviour, why should they be trusted to make judgements on accountancy or business practice? And many homicide cases depend on complex scientific or medical evidence; in fact expert evidence is a regular feature of cases of every kind, why should we trust the uneducated to decide such questions? At the other end of the scale governments of both colours have been keen to chip away at the right to jury trial for minor thefts and assaults, largely on the grounds that it is an unnecessary and extravagant luxury.

The usual case against juries in sex cases – merely hinted at in Mr Maugham’s short piece – is that they apply “rape myths” to return over-lenient verdicts; in other words that they apply pro-male prejudices to acquit men of rape. Yet prejudice works both ways: one study on mock jurors, for example, showed that while being poor, male and politically conservative were all associated with being more likely to acquit in rape cases, being rich, having “low empathy” for the defendant and having “positive attitudes towards rape victims in general” were all associated with being more likely to convict.

There is something horribly condescending about the idea that only those with the approved prejudices should be permitted to decide guilt in sex cases. It is just as wrong to convict because you have “positive attitudes towards rape victims in general” as it is to acquit because you think women often lie about rape. Mr Maugham’s assertion that “men are able to rape women with impunity” is itself an absurd prejudice.

The fact that a jury (usually) has 12 members, the need for jury near unanimity and the fact that in a real trial a jury is well aware of the solemnity of its task and is given clear instructions of law ought to mean that prejudices are as far as possible put to one side. Of course that does not always happen. But the best study we have of the workings of real juries in actual cases (Cheryl Thomas’s 2010 Are Juries Fair?) suggested that it usually does. Conviction rates for rape in jury trials were about 55% (CPS figures suggest that they now hover around 58%), which was higher than for many other serious offences, including manslaughter, GBH and attempted murder. The study also, to use its expression “challenges the view that failure to convict in rape cases is due to juror bias against female complainants.” Juries were, if anything, harsher on male complainants than on female ones.

I am quite sure that if Mr Maugham were on a jury he would never judge an individual more harshly because of his belief that the law generally is harsh to women, but if he did so he would in all probability find his prejudice counter-balanced by someone who thought that, on the contrary it is too harsh towards men.

Juries are not perfect. They consist of human beings and as a result they can be stupid, prejudiced and unfair, as some “specially trained judges” would also be. Juries provide no absolute guarantee against miscarriages of justice, both in acquitting the guilty and in convicting the innocent. The effect of social media on juries is a huge problem that we have hardly begun to address, as recent events involving Tommy Robinson have demonstrated. There are many ways in which juries could be made more just: one suggestion which in my view deserves consideration is that they could be asked to give at least an outline of reasons for their verdicts, as they sometimes are at inquests.

What we certainly should not to is to enlist prejudice, misunderstanding and myth with a view to undermining one of our fundamental protections against injustice and tyranny. That is the danger of pieces like Mr Maugham’s.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

44 thoughts on “Rape juries: Jolyon Maugham hits the wrong target”

  1. All rape statistics bar convictions are garbage, and I’m not sure about many of those. They pluck these figures out of thin air. Julie Bindel is not only a man-hater but delusional, so anything she says can be safely ignored. If you think that an exaggeration, check out my article on Emma Humphries, a murderess she and her lover Harriet Wistrich championed.

    After the Liam Allen case I have to wonder if young women today understand what rape or even consent means. He was charged with six sexual assaults and six rapes. Genuine victims don’t keep going back for more.

    This bloke’s article is yet another attack on due process, in which connection, please check out my recent video on the Bill Cosby case. Of particular interest is the way the media ignored the fact that many of his accusers have not only zero credibility yet have actually been proven to have lied:


    The way to “improve” rape clear up statistics is

    a) a strict statute of limitations for reporting – but not for prosecution
    b) prosecuting false accusers vigorously
    c) refusing to prosecute weak cases
    d) encouraging women to take responsibility for their own actions; don’t get drunk, have sex, then cry rape three days or three months later.

  2. Valuable piece, as nearly always, Matthew.
    But I’m sceptical about the idea of juries having to give an outline of reasons for the verdict.
    Suppose they produce a unanimous verdict and a rubbishy, self-contradictory outline-of-reasons text. What then?
    Suppose they reach a unanimous verdict after one day, spend the next day working on an outline- of-reasons text and they can’t agree on that. What then?
    These are theoretical points, so the question arises: Does such a system exist anywhere in the world already that we can examine in action?

    1. Such a system does arguably exist in England and Wales in the magistrates’ courts where magistrates must give at least brief reasons for their verdicts – and much lengthier reasons for their decisions in family court cases. These reasons could no doubt be better than they sometimes are but they certainly take time and much discussion to formulate – and that is wuh people used to do it and the aid of a legal adviser. A jury of twelve doing it for the first time would certainly not find it it easy or quick.

    2. “Suppose they produce a unanimous verdict and a rubbishy, self-contradictory outline-of-reasons text. What then?”

      They’d be called Magistrates

  3. Jolyon Maugham and Julie Bindell need to put their views in person to a group of, say, 100 wrongly convicted men about to be released from prison (of the 1 to 2 thousand minimum who are currently in prison). It would be easy enough to assemble them for a talk from these public opinion forming experts I reckon.

    The arrogance of saying these things whilst being utterly out of touch with the reality of wrongful convictions and lives ruined by false accusers, – who are not bloody “rare”, but insanely common, thanks to the “we believe you” and protect and pay the “victim” culture that has become dominant since Savile.

    As one of five men whose lives were wrecked by just one now discredited mad fantasist who was clearly after more compensation money (£22 K of which she still gets to keep along with her anonymity) I’d like to stick the public perception of Jolyon [EDITED] throughout the UK press and see if he thinks innocent men need protecting from his sort of base and ignorant thinking.

    1. Hello Patrick,

      The information you have given in your post allows the reader clearly to identify the case you were involved in – perhaps Matthew knows it too. I am terribly sorry for the suffering you have endured.

      As someone who has experienced the “frontline” in these matters, what recommendations would you make for changing the way the criminal justice system works in rape and sexual assault cases?

      1. Not sure how anything I have posted allows identification of my accuser, please explain how that is possible?

        One change I would promote is some kind of enforcement of police training to properly investigate cases as per extant guidance.
        They never do.
        This would require training in critical thinking skills and the awareness of cognitive bias.

        I would also suggest each case had two detectives, working independently from each other for key periods, one assigned to exculpatory issues that counter the “we have a suspect, great! let’s prosecute him and make the evidence fit that goal.” current system.

        1. One change I would promote is some kind of enforcement of police training to properly investigate cases as per extant guidance.
          They never do.
          This would require training in critical thinking skills and the awareness of cognitive bias.

          I would also suggest each case had two detectives, working independently from each other for key periods, one assigned to exculpatory issues that counter the “we have a suspect, great! let’s prosecute him and make the evidence fit that goal.” current system.

        2. Sorry for duplication, trying to correct, phone not behaving.
          I see you just said the case, not the false accuser name…

          1. Something weird went on with my phone there – trying to edit, apparently hit submit, though no change showed on my phone – and you will see I recognised what Rob meant belatedly.
            As for how things should be changed. Reading the Secret Barrister I can see all notions of what needs to change in the way the law operates post investigation being a massive set of varied issues –
            None of them counters the reality that the problem for the many thousands of falsely accused “Saviliean” victims is how the police operate under the pressure of targets ( to make a case go to charge) and “increase rape convictions” when the people concerned have actually had an increase in staff numbers (whilst all other staff have had massive cuts) but that these people, or defectives, are proven less able to properly investigate than untrained 6th form students.

            You can tell from their comments to the Times report on 19th January, the police STILL believe this fantasist, despite the belated discovery of her lies being proven (so it is not as much a CPS failing as a police failing.) https://www.thetimes.co.uk/article/cps-failings-paedophile-trial-collapses-over-lurid-claims-of-serial-fantasist-dv7dzd5r2

            If none are prepared to use a 3 year delay between accusation and arrests to investigate the past/credibility of accusers who have already made false rape allegations on 3 previous occasions, and the result of this is £1,000,000 spent ruining the lives of five innocent old men – no wonder there is no money or manpower to go round.

            The other aspect is that we need to take the decision to tackle police failures via prosecuting PCJ when the evidence shows an anonymity and CICA rewarded false accuser deserves it. We currently seem to require a 95% chance of conviction AND the police/DPP to decide it is “in the public interest to humiliate and implicate themselves”, before we dare try this rare act of justice and prevention.
            Then, maybe, we will stop incentivising False accuser/money grabbers to take the resources in investigations that go to trial, that should be carefully shaped to suit those brave real victims who are actually reliving a real trauma and are genuinely suffering.

            And finally:-
            The police should not be allowed to name the accused until the trial – to stop trawling for wannabe victims to put forward claims that back up a weak or non existent case.

            Juries seem unable to discern where collusion or false assumptions should mean a case is thrown out, and are very ready to convict on the basis of “he did it twice, obviously guilty” (Scotland’s corroboration law makes this doubly important)
            when as we know – this kind of trawling produces a swarm of fantasists and liars.

    2. Being acquitted doesnt mean your innocence.
      To charge ( as I believe you were) then there has to be a 75% chance of conviction… hmmm no corroborating evidence. Extremely doubtful Mr Graham.
      Police messing up the investigation does not mean your innocence… think on.

      1. “75% chance of conviction” is not the test that the CPS applies. It is whether, in the view of the prosecutor and assuming an objective jury properly directed, there is a “realistic prospect of conviction.”

      2. Justin,
        Are you saying that you are probably guilty of a heinous crime because someone said you were?

        I see today that you are accused of raping a child, an anonymous previous accuser has accused you.
        Sorry – but I sentence you to many years of disastrous health destroying stress, a lost career, no contact with children, and societal condemnation with no chance of recovery – even if the accuser is revealed by her own statements to be a serial liar – because once accused of rape, – the reality of guilt is there for ever.

        What’s that you say ? – but you’re innocent? – well the court never said that, never got a chance to, the CPS never said that either, they just said they couldn’t provide enough evidence to convict you, the police are sticking to their guns because otherwise they’d have to admit they were wrong…so that’s your DBS screwed for ever, no more work in your career.

        So from this point on I will continue to believe you really are a “paedo” and maybe get someone to paint that on your front wall.

        There you go –
        are you happy with your position now Mr 75% ?

      3. And a guilty verdict doesn’t necessarily mean that the person isn’t innocent, mistakes happen. Particularly if there is a bias in only looking at evidence that supports the investigators narrative. But we should believe somone is innocent unless proven guilty. Otherwise why bother with a trial.

        1. thanks Zack –
          and from talking to prison officers and psychologists, they estimate about 1000 – 2000 prisoners maintaining innocence ARE innocent.
          A massive proportion of which are “sex offenders” sent down on the word of accusers with no other evidence.
          The way prison works on your head makes it virtually unknown for a guilty prisoner to maintain innocence for as along as a year, the pressures and negative status in a world where pretending innocence loses you every privilege and friendship, ensures that.

  4. Agree with your exhaustive analysis Matthew. I don’t think the problem is juries but the evidence in sex trials – and here I would say there is a specific problem in entrusting juries in historic uncorroborated sex trials where the danger is not wrongful acquittal, but wrongful conviction. I have no faith in judges making better decisions by and large since they apply the rules that allow these miscarriages of justice to occur on a banal and regular basis.

    No, the problem lies with the fact that too many of these cases go to trial unfairly. A whole different topic.

    As to reports of rapes and sexual assaults. I do think people have a duty to report dangerous sexual assaults – to protect others. Some may say all sexual assaults are dangerous. To take a trivial example, this is plainly false: a fleeting unwanted non-consensual hand on a clothed knee or touch of an ankle may be a ‘sexual assault’ in law. Regretted or ungainly clinches – even full sex – may be a source of some personal disgust but behaving badly socially is one of life’s vicissitudes, and unless habitual is better dealt with morally and socially than by the strong arm of the law. Usually for everyone’s sake.
    Anyway many more people are ‘traumatised’ by emotional betrayal than the odd drunken party excess. And most people, on reflection, recognise this and desist accordingly.

  5. Hi Matthew,

    Thanks for your analysis. I hadn’t seen Mr Maugham’s piece and don’t, now, feel the need to read it. Therefore I don’t know if he also suggested that the criminal standard of proof should also be amended for rape cases. You didn’t mentio it so I will assume he didn’t. On that basis I can’t see how changing the arbitor of fact from a jury to a judge (even a specially trained one) would make much difference. If standard is beyond reasonable doubt then the prosecution’s task is always going to be difficult given that, in most cases, there will be no witnesses to the actual event or the giving/witholding of consent. Clearly forensic evidence can help with the former, but unless Alexa happens to record the event the latter is rarely going to be assisted by forensic evidence.
    As for the hinted at suggestion that perhaps the defendant should, in effect, be considered guilty until he can prove he is innocent, the inequality of arms of such a situation would surely require that the police, or someone with the same powers and resources, would need to investigate the complaint from the defendant’s point of view. As we saw with the Liam Allan case, if the police/CPS can’t even get the current disclosure rules right, what chance would a defendant have if the Crown only have to turn up in court and effectively sit with their arms crossed and present no actual prosecution case?

  6. You say that, “Being kissed or touched ‘when you did not want it,’ or unwanted touching, is not the same as being sexually assaulted”, but I am not sure I understand why you say so. Your explanation appears to be that, “Sexual assault in law requires the absence of consent, an ingredient which is not required by the CSEW…” If you’re arguing that “you did not want it” is not the same as an absence of consent, it’s hard to see why. It seems to me that “you did not want it” is a decent shorthand for the statutory definition: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” A better reason would surely be that the CSEW question omits any consideration of the defendant’s state of mind?

  7. I was shocked to learn that in this cuntry now pigyobs can simply turn up and lock you away in gaol for YEARS….not even ‘remand’, or an accusation, not even a trial…never mind a jury! i was always taught that right to a jury trial was a fundamental part of the magna carta thing…..as well as something about it ‘can not be undone’……but apparently it was…just when exactly?

  8. While I applaud your analysis, it seems to me it ignore the fact that the number of false complaints is tiny. Eg Chief Constable Simon Bailey told the Henriques review it’s only 0.1 per cent. (And the proportion of complainants prosecuted for false accusations is even smaller.) Given that, it would seem logical to get rid of juries if jurors fail to understand that people who report sexual assault don’t lie.

    At the very least, campaigning for such a change would give Chief Consatables, PCCs and the College of Policing further opportunities for value signalling (which in today’s politics matters much more than logic).

      1. Indeed. I know a faker in the ‘industry’ when I see one. Bailey’s ‘0.1’ per cent was an innumerate exaggerated spin on the usual ’99/98 per cent’ true ‘1-2’ per cent false which – as I’ve said before is the mark of the ‘true believer’ who imagines ‘100 per cent’ and then injects the 1-2 per cent statistical error to make it seem plausible. It goes back almost 30 years in the sex abuse claims industry and can be applied ad libitum.

        There are no gov statisticians employed in providing proper figures, short of presumptions,that I know of. Most people don’t understand stats or their interpretation.

        Nobody knows how many allegations are true or false.

        Anyone who says differently is lying.

        1. The current “pro-feminist” crime and women’s aid surveys tend to put the number of women who report being raped as somewhere between 75,000 to 90,000.
          Women’s Aid rightly point out that there are very good reasons why only 10%, at most, of these report their rape to the police.
          Let’s say, for the sake of argument, that all those were genuine, and last year.

          That means 8,500 women reported a genuine rape last year…
          Gov.uk says there were 41,500 reports of rape made to the police in that same period.

          Even the most generous bending of the statistics cannot get past the fact that thousands of women (who do not have the “reliving of trauma” reason to not report) are lying.

          Let’s be generous and say that only half those who were reporting rapes that didn’t happen were prosecutable liars trying to pervert the course of justice.
          16,500 cases.
          of which only 14 were actually prosecuted.

          And the “public interest” that meant my accuser who had made a dismally disproved accusation back in 2008, was not prosecuted for PCJ, despite being described by the case-dismissing CPS lawyer as a “sexual predator” – is that why she was able and encouraged to make a fresh set of false allegations ruining five families lives for years and at massive cost to the public purse?
          remind me again – what is this public interest?

          1. To clarify your first use of “report” is to surveys and the second to the police?!

            Interestingly the “experts” in the wimmins “studies” industry used to claim around 55,000 rapes a year.

            They’ve now inflated that to around 85,000 year.

            The first figure included “crimes” such as cases were women were “forced” ta have sex with their husbands or partners when they “didn’t want to” because they were “afraid” that if they didn’t “submit” their partners might cheat on them or even leave them!

            I’ve seen no examples of what kind of cases made up the 85,000 figures, but I do know the “Professor” of wimmin’s “studies” behind the survey teaches that if a woman comes to believe a partner or husband only said they loved/ married them to get inside their knickers, then that’s deception and makes any sex rape!

            She also believes that all sexual assaults are the same thing as rape!!

            And that wolf-whistling, sexual banter, unwelcome smiles and cheery greetings,,,,,,

            Are the same thing as sexual assault……..

            Which as all left thinking women know is the same thing as rape!!!

        2. “Lies, damned lies, and statistics”. . . . . and anyway “Why let the truth get in the way of a good story!” As a former academic and social scientist, my working life was constructed on information driven argument and ultimately came to a conclusion based on empirical data, without too much contiguous emotion.

          Was it not Winston Churchill who expressed the balance of truth to lies with his “A lie will get half way around the world before the truth has the opportunity to put their pants on!” Simon Bailey, the Chief Constable of Norfolk police and the NPCC lead on child protection and abuse investigations, was reported by the Guardian Newspaper in 2013, to have said ” police had a database of 50,000 people who regularly viewed indecent images of children”. In public interviews he went on to suggest that there were 750,000 paedophiles living among us, this excluded those viewing indecent images. Two years later he amended this figure to about 100,000. Confused? I was.

          I would suggest that he needs to be careful with figures. Because amongst his ‘band of merrymen’ in Norfolk, the higher figure suggest that he has at least 10 police officers, who are trusted persons, with access to children. In Devon and Cornwall this figure would be around 35 and in the ‘Met’ possibly several hundred!

          He has been flippant in quoting ‘studies’ and yet, no empirical data study has ever been made public. I challenge him to present his evidence so that we have a clear understanding of the numbers.

          1. Do your estimates allow for the fact that almost all paedophiles are supposedly men and that most policemen are, ermm, men also?

            Or should the numbers in sensitive units be doubled (quadrupled?)?!

          2. Reply: Do your estimates allow for the fact that almost all paedophiles are supposedly men and that most policemen are, ermm, men also? Or should the numbers in sensitive units be doubled (quadrupled?)?!
            I have never made estimates as I leave this to others. In the public domain, we have studies and reports from the ‘Lucy Faithfull Foundation. They believe that up to 25% of paedophiles are female. There are countless European studies, that are fairly consistent with each other, allowing for sample proportion error and cultural differences, which have significantly lower numbers per 1000 head count, to those declared in the UK. I have yet to discover an empirical data study undertaken by a UK University, or organisation, that can give us a clear picture.

            I do fear that those of Simon Bailey following have a hidden agenda to frighten the public and also to, in every opportunity, vent their anger about previous failing of the justice system to tackle abuse. Sir William Utting, the former Her Majesty’s Chief Inspector of Social Work, commented: ‘It may be that innocent people are being convicted, but we ought to be more worried about the guilty who might get away’. This baleful comment implied that any allegation towards the abuse of children, merited a complete reversal of the legal principle of the presumption of innocence, in order to increase the prospects of securing convictions. Since then we have seen an exponential growth in so called ‘victims’ making allegations.

            The report highlights concerns ‘Among politicians, criminal justice agencies and charities in the UK, there is a collective sense of remorse that reports of abuse were often not properly investigated and that those who reported it were often not believed’. From this has emerged a new determination to correct the past, much an overkill and witch hunt in trying to prevent further injustices of this past kind.
            Agency after agency constantly reinforcing a public fear and misrepresentation; that there stands on every street corner, in every park and in every public place numerous sexual predators. Surveyed evidence reveals that public opinion is swaged to an argument that any person who is not prosecuted ‘was let off’ and they are never described as entirely innocent. This free for all justice system, and uncontested allegation culture has become crafted by politicians, charities, police and other groups with their own agendas, allowing the police themselves to have a free hand to make allegations without any evidence and any risk of redress. Proportionally, with arrest to conviction rates, there are very few prosecutions despite many police forces dedicating vast resources which have been taken away from community policing.

    1. “ignore the fact that the number of false complaints is tiny. Eg Chief Constable Simon Bailey told the Henriques review it’s only 0.1 per cent. (And the proportion of complainants prosecuted for false accusations is even smaller.) Given that, it would seem logical to get rid of juries if jurors fail to understand that people who report sexual assault don’t lie.”

      For a start if there are “only” 0.1 per cent…… false accusations then 0.1% NOT 0.0% DO lie!

      And for second start haven’t 57, is it, prosecutions been found to have been proceeding/ concluded on the basis of a false allegation?

      This year alone!

      That’s over TWO a WEEK.

      Don’t hear many feminists complaining there are “only” two women a week killed by their partners, the number is tiny, so why are we bothering persecuting them?!

      At least the women are dead and no longer suffering, assuming their partners hadn’t actually been the ones suffering and finally snapped!

      The victims of the false allegations have the rest of their lives ruined and suffer until the day they die!!!

      And for a third start these cases are ones where firstly evidence of innocence existed and secondly someone other than the police found it.

      If that “few” cases exist where often an amateur digs up the evidence of innocence, how many cases are there where the evidence exists but no one finds it?!

      More importantly, evidence almost always DOESN”T even exist.

      These 57(?) cases are the pure flukes where the false accuser effectively proved, or admitted to someone, or in some way, it was a false accusation:

      AND there was an electronic record (phone, computer, video);

      AND it was recoverable;

      AND some third party amateur tried to recover it!

      And in the 57 cases identified this year some lucky sod hit a hole in one under a blue moon on his birthday!!

      On the 29th of February!!!

      So in how many cases of false accusation has just one of the links in the chain not been present, never mind all but one?!

      The 57 must be “only” 0.1 per cent of the number of false accusations in 6 months.

      So “only” 114,000 false rape accusations a year!

      So much for only 0.1%!!!

    2. Even if there is good evidence that an allegation is false, it will be rare for action to be taken. There would have to be irrefutable proof, such as a confession or CCTV evidence. No-one is going to destroy their career pursuing such a conviction against a rape complainant, even if there is merit in doing so. We obviously don’t know what percentage of allegations are false. But I would strongly disagree with “jurors fail to understand that people who report sexual assault don’t lie”. Why even bother with a trial at all if complainants never lie? Personally I think we’re convicting people far too easily for these offences, when the evidence isn’t really strong enough.

  9. Really enjoyed this piece Matthew. Towards the end of the post, you touch upon why the jury system is so important. I was wondering if you have previously written about this in more detail? If so, I would be very interested in reading it (and if not, perhaps it may be worth writing a blog on that specific subject some time?). I’m instinctively in favour of keeping juries, but I regularly come across others that want to do away with them (Spinning Hugo comes to mind).

  10. I can’t help thinking back to your article about Rolf Harris deserving a retrial. It seems to me that the most concerning issue in cases of sexual assault is that the standard of proof seems to be only nominally ‘beyond reasonable doubt’. Compared to that, the matter of whether one should be subject/entitled to trial by a dozen random members of the public seems to me to be of lesser significance.

    That aside, the quality of Mr Maugham’s analysis makes me surprised that he didn’t resort to the phrase ‘tip of the iceberg’, which is the standard defence when the statistics and/or evidence to hand aren’t sufficient to back up one’s arguments and generate the culturally prescribed degree of mass hysteria. It’s in the same league as the so-called Helen Lovejoy defence.

  11. It always strikes me that its strange that the inherent difficulty of prosecuting rape as opposed to other crimes is never discussed. Very few people will consent to the physical acts that constitute say robbery, burglary or GBH. Hence a Defendant will hardly ever have a plausible “the complainant consented to the act” defence open to him. However, the physical act that constitutes rape (insertion of a penis into a certain bodily orifice) is, in the vast majority of instances, consensual. Hence a rape Defendant will generally be plausibly able to run a consent defence.

    It follows that even in a perfect world one would expect the rate of rape convictions to be lower than the rate of convictions for other crimes.

  12. Instead of starting with the jury system, shouldn’t Maugham start with the Police and CPS disclosure issues ? That would be the current starting point for me.

    Statistics are generally difficult to understand so I’ll cut Maugham some slack, I know I had 2 years of them at university and they drove me mad. But the general rule is that if you don’t know what you are talking about then shut up. The errors and misinterpretations from Maugham have diluted his point somewhat, but quite frankly it doesn’t seem worth making anyway. However, he is one of a growing number who seem to favour ‘adjusting’ the legal system to accommodate the wishes of the #metoo sisterhood. Any change bought about by a movement such as this would be a disaster.

    Finally Matthew it was an excellent critique of Maugham’s nonsense but your little jibe at Greer was harsh. I think her view on rape is a little more nuanced than you suggest by your remark based on what I have read.

  13. Why do we even have a “crime” of rape in the 21st Century?

    Surely it was an anachronism even in the 20th?!

    Are women still the chattels of their fathers until handed over to their husbands?!

    Does sex before marriage soil the father’s goods?!

    Or the husband’s?!?!

    Infringe the husband”s “rights” to exclusive access to a woman’s body, choice over her carrying his child only?!?!?!

    It’s not even as if there is any physical harm, injury, pain, or even trauma (remember it’s a patriarchal myth that most rapes are committed by strangers/ in a dark alley/ with violence…..)!

    In fact almost all rapes are by friends or family (husbands) with no violence, merely lack of previous signed consent!!

    There may even be intense pleasure experienced by the female, all rapes are the same, and is there any real difference between date rape and a man offering his figure conscious date a spoon of his dessert and as she opens her mouth and says “no thanks” popping it in the open orifice?!

    So surely the “crime” of rape, and also of “sexual” assault, should be scrapped, and the courts left to deal with any actual physical harmful assault as evidenced by physical injury?!

    1. Agree BJ Mann – I long ago campaigned to do with the rape law since it stood for the despoiling of as man’s property, I even went as far as writing in a formal request to the law commission – (as all are entitled to do ) and whilst they dismissed it, I feel that the public misunderstanding of the word is more to do with their disregard than sound legal argument.
      I also feel that the arguments for it now are even stronger.

      If the enforcement of law is properly focused on crimes against the person being more demanding of careful pursuit of justice than crimes against property (just to turn the tide of history) – then assault with degrees of degradation or violence seems to me to be all the law we need in this context.
      And a judge can decide, based on a revision of the accursed and badly drawn up guidelines, as to what the punishment level for those found guilty should be based on perceived seriousness of the offence.
      (e.g. whether an offence of forced penetration was done with a penis or a broken bottle).

      The law being anachronistic is not something up with we should put.

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