The Harman amendment: legislation as gesture politics leads to bad law.

Harriet Harman, the former solicitor-general, has put forward an amendment to the Domestic Abuse Bill which, she says, would prevent

a defendant, when he has admitted his actions caused injury, from arguing or raising the defence of consent, if the injuries resulted in GBH or death.”

It is likely to have no practical effect: as the law stands, apart from a few specific exceptions which Ms Harman’s amendment does not address anyway, the defence she describes does not exist.

This is her amendment to the Bill:

No defence for consent

(1) If, in the course of any behaviour which constitutes domestic abuse within the meaning of this Act, a person (“A”) wounds or assaults another person (“B”) causing actual bodily harm, more serious injury or death, it is not a defence to a prosecution that B consented to the infliction of injury.

(2) Subsection (1) applies whether or not the actual bodily harm, more serious injury or death occurred in the course of a sadomasochistic encounter.

According to the campaigning project We can’t consent to this – I hope this is a fair summary – there is an increasing tendency for men to use the “defence” that women they have killed, usually by strangulation, had consented to “rough sex.” As a result, they are either not charged, wrongly acquitted or convicted of the lesser offence of manslaughter; or are at least able to use the woman’s consent as mitigation and thereby to obtain a lighter sentence. The organisation has produced a list of women killed by their partners, where, they say, the defence was used.

Guardian columnist Joan Smith put the argument very succinctly:

“… men are seriously asking juries to believe “she asked for it”, even when what she supposedly “asked” for has ended in death. It is victim-blaming on the most brazen scale and the sole “evidence”, in virtually all of these cases, is the word of the defendant.”

Another columnist, Barbara Ellen called the defence” worryingly fashionable.

The campaign was begun in response to the trial of John Broadhurst for the murder of Natalie Connolly. Natalie died after suffering terrible injuries. Her body was covered with bruises, she had haemorrhaged from an injury to her vagina caused by the insertion and removal of a plastic bottle and had suffered a “blow-out” fracture of her left eye socket. Mr Broadhurst had told the police that most of the injuries (with the exception of the eye socket fracture) had been inflicted during consensual sexual activity. Although Mr Broadhurst was originally charged with murder, the CPS dropped the murder charge during the course of the trial. He pleaded guilty to manslaughter on the grounds of gross negligence and received a sentence of 3 years and 9 months imprisonment. Continue reading “The Harman amendment: legislation as gesture politics leads to bad law.”

Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.

Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of the police investigation. Mr Corbyn has described it as a “disturbing move.”

It is nothing of the sort.

No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed a standard form to give to complainants for use when investigating sexual offences.

It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.

Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked the more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict. Continue reading “Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.”

Everything we know suggests that the CPS was right to drop murder charge against John Broadhurst

It is hardly surprising that the sentence passed on John Broadhurst, 3 years and 8 months imprisonment for the manslaughter of his girlfriend Natalie Connolly, has been widely condemned. The Attorney General has announced that he is considering whether to refer the case to the Court of Appeal, which would amount, in effect, to a prosecution appeal against sentence.

The terrible death of a deeply loved and blameless young mother is a very difficult thing to comment on. Perhaps for this reason the Crown Prosecution Service has not said anything about the outcome of the case at all.

The case raises some very uncomfortable questions: why was the murder charge not left to the jury? Why was the sentence so short? Is the law too soft on men who kill women? These are entirely legitimate matters of public concern.

On the other hand it is also very important that comment based on inaccurate or incomplete facts is corrected. The decision to withdraw the murder charge from the jury has been presented as though it were self-evidently absurd: it was not. It has been said that Mr Broadhurst was acquitted of murder simply by asserting that Ms Connolly liked being beaten: that is not true either.

The bare legal facts are that he was formally acquitted of murder by the jury, on the judge’s direction, after the prosecution decided to accept his plea of guilty to manslaughter.

It is easy to see why the decision to drop the murder charge has attracted outrage. Mr Broadhurst had inflicted “over 40” injuries to Ms Connolly: her buttocks, lower back and breasts were covered in bruises. She had haemorrhaged from an injury to her vagina, caused when Mr Broadhurst first inserted and then tried to remove a bottle of cleaning fluid. She also had what was described as a “blowout fracture” of her left eye socket. As she lay dying at the bottom of his stairs, he went to bed. When he eventually rang 999 to call for an ambulance the following morning he described her as “dead as a doughnut,” an awful, almost playful, phrase to use in such terrible circumstances.

In opening the case, the prosecution asserted that she died after Mr Broadhurst “totally lost it” and “beat her with his fists.” David Mason QC suggested that jealousy was the motive: Mr Broadhurst, he said, had discovered that his girlfriend had been contacting ex-boyfriends, and had arranged to meet a man in Dubai.

On the face of it this was a classic case of a violently abused young woman who had been appallingly treated by her jealous older partner.

How on earth could the CPS give up on pursuing a murder conviction? And how could it be that the judge felt that a sentence of less than 4 years imprisonment could be an appropriate punishment on a man who had not only killed, but also inflicted such injuries on her? Continue reading “Everything we know suggests that the CPS was right to drop murder charge against John Broadhurst”

Are 75% of rape complainants cross-examined about their sexual history?

There was a striking headline in today’s Times:

Sexual history of rape victims still being put on trial

Many people will not have a Times Subscription, so if they saw the story at all online they would have seen only the headline, a picture of Ched Evans, and the first sentence of the story which asserted:

Victims of alleged rape or sexual assault are questioned about their sexual history at trial in nearly three out of four cases, a survey shows.

Those able to read the full story would have read that:

Only one in four alleged victims did not have to face such examination.” Continue reading “Are 75% of rape complainants cross-examined about their sexual history?”

Harriet Harman’s proposed ban on sexual history evidence would be grotesquely unfair

Over the last few years there have been a number of powerful nominations for the title of stupidest Parliamentarian. This blog has in the past made what I thought was a powerful case for the prize to be jointly shared between Messrs Peter Bone and Phillip Hollobone, and the Secret Barrister has repeatedly and persuasively argued the case for Phillip Davies, and indeed may do so again at greater length in his eagerly awaited book. Just to prove that Conservatives do not have a stranglehold on the competition along comes Harriet Harman with a legislative proposal which is guaranteed to produce injustice and, for good measure, is virtually certain to be ruled incompatible with the Article 6 right to a fair trial under the European Convention on Human Rights. Continue reading “Harriet Harman’s proposed ban on sexual history evidence would be grotesquely unfair”