The law until 1994

Until 1994, the criminal law of England and Wales required that there should always be ‘corroboration warning’ in sexual offence cases. A conviction where no warning had been given or was given improperly would most likely be overturned on appeal.

A jury could convict a defendant in such a case where there was no corroboration, as long as the appropriate warning had been given.

The Court of Appeal in DPP v Kilbourne (1973) AC 729 said that ‘corroboration’…

by itself means no more than evidence tending to confirm other evidence. [E]vidence which is (a) admissible and (b) relevant to the evidence requiring corroboration and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.

Lord Salmon, R v Henry and Manning (1969) 53 CrAppR 150 set out why, in his view, a corroboration warning was appropriate.

What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons… and sometimes for no reason at all. The judge should… tell the jury that… they
have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then… they are entitled to convict.

Lord Salmon’s focus on “girls and women” does seem perniciously old-fashioned, and indefensible in today’s terms [1].

However, this highly experienced senior judge also makes a good point. It is one which needs to be made today, even though it is almost blasphemous in today’s victim-obsessed culture.

An allegation of a sexual offence remains today “easy to fabricate” and “difficult to refute”, and it is a matter of fact [2] – whatever proponents of the easier sexual offence convictions may argue – that such fabrications do take place. Any evaluation of the law as it stood, and any comparison with the law as it is today, has to take that into account.

The level of ‘similar fact’ evidence [3] which could be used to corroborate an allegation was strictly controlled. The similarity between the alleged ‘similar fact’ evidence and the offence charged had to go beyond merely suggesting that the accused was the kind of person to commit the offence charged, and had to be so striking as to point strongly to the conclusion that the defendant was in fact guilty of the offence charged.

So, until 1994, a conviction in a sexual offence case was technically possible without corroborative evidence, as long as the appropriate warning had been given. But as a matter of practice proceedings were not generally taken unless there was corroborative evidence available. Otherwise, the view was taken that the case failed the “likelihood of a conviction” test.

The law from 1994

In 1991 the Law Commission recommended that the corroboration rules should be scrapped. As their report notes [4], the Criminal Bar Association argued that a corroboration warning in these cases was an “an essential safeguard for the defendant”. However, the Law Commission believed that “the present general obligations of a trial judge with regard to doubtful or unreliable evidence” would adequately preserve a defendant’s position. Thus, a rule mandating a warning was to be replaced with a generalized hope that judges would ‘play fair’ with defendants.

So the mandatory requirement for a corroboration warning in trials of sexual offences was scrapped by the Criminal Justice and Public Order Act 1994.

Comment

The scrapping of this protective mechanism – a provision which made it less likely that an accused would be convicted on shaky complainant evidence – no doubt led to a small increase in rightful convictions. Unfortunately, it also made it much more likely that innocent accused were convicted of these serious offences.

Quite apart from the (unknown and unknowable) statistics there, that’s not the real point. It is the cumulative effect of a number of legal and practice changes, all weakening defendants’ rights, which put us in the place we are today.

Many of those cumulative elements will be discussed in later posts. Prime among them, though, are the police’s and CPS’s dogmatic assumption that complainants never lie and are never mistaken, and the CPS’s craven willingness to prosecute even weak sexual offense cases, leaving it to the jury to pick up responsibility for making the hard decision, if it can. Together, these politically motivated stances cost the taxpayer money and, even more importantly, damage lives unnecessarily.

In the end, it’s a question of balancing justice. No one wants sex offenders to evade conviction. But, even more, no one should want innocent men and women convicted of a sexual offence. If it were just a matter of some minor changes in the law, that would be one thing. But it’s not. Changes in corroboration rules. A dilution of when ‘bad character’ can be brought in. Weakening of ‘similar fact evidence’ provisions. A blurring between evidence of criminality and more general ‘bad behavior’. Changes to hearsay rules. Making Legal Aid harder to get. And, above all, the politics of prosecuting nearly everything.

There’s a pattern here. The change is all in one direction: to make convictions more likely and acquittals (even where there should be an acquittal) harder to obtain.

Part of the problem is that there is little likelihood of going back. Once a rule (even one needing finessing, such as the corroboration warning) is abrogated, it’s likely gone for good.

What we’re seeing over the last twenty or so years is a wholesale surrender to a form of political correctness which says that complainants in sexual offence cases rarely lie, and that defendants are usually guilty. And that’s not true, right, or just.