Tag Archives: justice

Diluting Defendants’ Rights: Corroboration

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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.

 

  1. As the 1991 Law Commission report on Corroboration of Evidence in Criminal Trials pointed out, “In recent years, it appears that a general form of direction is often used which does not distinguish between male and female complainants”.  ↩
  2. See the evidence accumulated in their newsletters by www.safari-uk.org.  ↩
  3. There will be a post on similar fact evidence coming soon.  ↩
  4. Paragraph 3.4 of the report.  ↩

Defendant anonymity: a provocative suggestion…

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Of course, there is another solution to the impasse over defendant anonymity until conviction in sexual offence cases. It’s an idea which those who argue for a free and open press and a transparent justice system might well appreciate.

It’s this. Repeal the law providing complainants in sexual offence cases with anonymity. Indeed, make it possible that their names and general location will be available to the public.

In this way, we can flip the arguments that those such as Emily Thornberry put forward on their head.

She has argued that publicizing the name of a suspect in these cases may well enable the public to make further complaint against the same person. Equally, for all we know, a given complainant might be – might well be – a serial complainant. Thus, publicizing their name and where they live might allow others who have been the subject of previous (false) complaints to have their memory jogged and come forward, etc, etc.

Likewise, anonymity may not be (according to her argument, at least) in the complainant’s best interests, because, if it is alleged against that person that they have lied, exculpatory witness will not know to come forward to support them either. And, arguably, if it is likely that the identity of a complainant is known, there is less risk that people will fabricate allegations, as indeed they sometimes do.

Meanwhile, Sir Cliff Richard has canceled his involvement which would have given him the freedom of the town in Portugal where he sometimes lives, and he has now been interviewed under caution, surrendering voluntarily and strenuously denying the truth of the allegations.

For the moment, those watching the story unfold are divided between those who will now (on the basis of no evidence whatsoever) perceive him “warily” because, after all, child abuse is (apparently!!) “the new “normal” in the land of fame and fortune”, and those such as Charlie Brooker, who points out that “Cliff hasn’t been charged or found guilty of anything, except on the internet, where he’s already serving concurrent 140-character sentences”.

Perhaps the justified brouhaha over the way the police and the BBC handled all of this will lead to a watershed moment where justice is offered to suspects as well as complainants.

In any event, let’s have it one way or the other. Anonymity for complainants and suspects in these cases. Or open season for all of them. Except that the latter isn’t going to happen any time soon. And probably not the former either.


Defendant anonymity: an emerging debate?

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A debate seems to be emerging around the search of Sir Cliff Richard’s Sunningdale home and the tip-off to the BBC. It is about time that this debate takes place. But it is a pity that the way it arises should be so prejudicial to a person who has not yet even been interviewed by police about a criminal complaint made about him.

The Guardian reports that South Yorkshire Police have formally complained about the BBC’s coverage of the search of Richard’s property.

The force was contacted some weeks ago by a BBC reporter who made it clear he knew of the existence of an investigation. It was clear he [was] in a position to publish it.

The force was reluctant to co-operate but felt that to do otherwise would risk losing any potential evidence, so in the interests of the investigation it was agreed that the reporter would be notified of the date of the house search in return for delaying publication of any of the facts.

Contrary to media reports, this decision was not taken in order to maximise publicity, it was taken to preserve any potential evidence.

South Yorkshire [P]olice considers it disappointing that the BBC was slow to acknowledge that the force was not the source of the leak.

A letter of complaint has been sent to the director-general of the BBC making it clear that the broadcaster appears to have contravened its editorial guidelines.

Additionally, Geoffrey Robertson QC has weighed into the fray in an Independent article. His claim that “orchestrating massive publicity for the raid on his house” seems, in the light of South Yorkshire Police’s complaint, possibly wide of the mark. However, he does make various telling points:-

1. The search was made in broad daylight when the police knew Richard was away from the premises.

2. Police codes provide that “the officer in charge of the search shall first try to communicate with the occupier” before entering the premises, and this aspect of the code was not complied with in this case.

3. The law requires that, for a search warrant to be granted, a justice of the peace should be satisfied that ”there is material on the premises both relevant and of substantial value“ to the investigation of a criminal offence. Robertson wonders how this element of the law can possibly be satisfied for the search of premises in 2014 in relation to an offence which is alleged to have been committed in another part of the country nearly 30 years ago.

4. The warrant should only be issued if it is “not practicable to communicate” with the owner of the premises, and there could be no possible difficulty in finding a way to communicate with Sir Cliff Richard, of all people.

5. Police codes provide that powers of search should “be used fairly, responsibly, with respect for occupiers of premises being searched”. Far from this being the case, the search was conducted in the full glare of media publicity.

6. The police should be required to get search warrants from circuit judges, rather than from non-legally-trained lay justices of the peace.

Now, there are counter-arguments to at least two of Robertson’s points, though at least one of them does not really hold water.

In respect of point 2, paragraph 6.4 of the Police and Criminal Evidence Act 1984 Code B states that communication with the occupier should be attempted ”unless the search premises are unoccupied“, and indeed they were unoccupied. On the other hand, the police will have known that they were unoccupied, and may have even waited until that was the case before initiating the search.

Point 3 above: it is invariable practice that a search is conducted in historical abuse cases, and papers, computers, cameras, disks taken away for analysis. Whether this is a form of fishing for evidence to bolster a case, or a reasonable extension of a police investigation into other areas of inquiry, is a matter of opinion.

Whatever view one takes here, it is arguable that, under the current law, police should have waited until Richard was at the premises, visited him there, arrested him as necessary, and conducted a search under their general powers of search after arrest under Section 32 of the Police and Criminal Evidence Act 1984. Any arrest and search should have taken place discreetly, probably after hours of darkness, and without notice to or discussion with the media, whatever their state of prior knowledge.

But Robertson makes a further claim, about the effect of high-profile searches and prosecutorial delay on a suspect’s life:-

If the outrageous treatment of Paul Gambuccini and Jimmy Tarbuck is any guide, Cliff Richard will remain in a cruel limbo for 18 months or so until the police and the CPS decide whether to charge him. This has been one of the most intolerable features of other high-profile arrests for ”historic” offences, namely the inability of police and prosecutors to deliver Magna Carta’s truly historic promise that justice will not be delayed.

The CPS has taken up to 2 years to tell journalists like Patrick Foster that they will not be prosecuted, after unnecessary dawn raids, and publicity every time they are bailed. This lack of care for their liberty is amoral, because it subjects them to drawn-out psychological cruelty. If the CPS cannot decide whether to prosecute 3 months after receiving the police file, it should not prosecute at all.

Robertson makes two other claims, first that the search clearly broke the privacy provisions of article 8 of the European Convention of Human Rights; and, second, that most European countries have time limits which prevent prosecutions of most sexual offences after a lapse of 10 years. After 25 years, fair trial becomes very difficult, as memories dim, alibi witnesses die and records disappear. We will assess these arguments in later posts.

For the moment though, let’s congratulate Robertson for standing up for the rights of the suspect in historical abuse investigations. Suspects in such cases are human beings too, with human rights under the law. It appears that the criminal justice system in England and Wales has decided that these rights no longer really count for anything when stacked up against their pressing need to be seen to be doing something, anything, to satisfy the public that they are doing all they can to stem the alleged tide of child abuse, which is any event a myth born of a generalised public fear and anxiety.

If we are not yet back in Salem, we are getting pretty close to being there.

 

Defendant anonymity: an update

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The 14 August 2014 search of Sir Cliff Richard’s Berkshire home after an allegation of sexual molestation of a minor in 1985 and the attendant press coverage highlight the pressing need for defendant anonymity in alleged sexual offence cases, as we claimed in two recent posts.

Various aspects of this event demand inquiry.

Cliff Richard, on holiday in Portugal, was given no notice of the search. But the press probably were, since they were able to send reporters and helicopters to cover the story as it happened. South Yorkshire police have said that news of their search of Richard’s property had been leaked to the BBC, but that they were not to blame.

Cliff Richard certainly believes that the press were forewarned, and issued this statement:-

For many months I have been aware of allegations against me of historic impropriety, which have been circulating online. The allegations are completely false. Up until now, I have chosen not to dignify the false allegations with a response, as it would just give them more oxygen. However, the police attended my apartment in Berkshire today without notice, except, it would appear, to the press. I am not presently in the UK but it goes without saying that I will cooperate fully should the police wish to speak to me.

Why were the media forewarned of this search?

And so the trial by media commences, before the entertainer has even been questioned by police. There are already news articles (too many to cite) about Richard’s bachelor lifestyle, his Christian faith, his homes in various parts of the world. There are aerial shots of the Berkshire home which was the subject of the raid, and long lens photos of police officers donning latex gloves to comb through the property.

Richard will no doubt be interviewed by police. But, even if he is not charged, or if he is charged, tried and acquitted, the die is already cast. The merest suggestion of this kind of sexual impropriety stains a person’s life, and Richard will need to live under this shadow for some time to come.

Presciently, we suggested in our second post on defendant anonymity that the identity of people such as Nigel Evans, charged and then acquitted of sexual offences, should not be available for media reporting unless and until a conviction ensues. And now Evans has argued on television – rightly, in our view – that there should be defendant anonymity in these cases.

Whatever the final outcome for Cliff Richard and others, the point holds true. A person is innocent until proven guilty, and there should be no trial by media. We are all for freedom of the press. But today the press has license to smear and to ruin people’s lives. There urgently needs to be a ban on publicising the names of those against whom sexual allegations are made.

Defendant anonymity (part 2)

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[Go here for the first part of this extended post…]

A summary of the debate (continued)

Since 1981 it has been the law in the Republic of Ireland that defendants in rape [1] trials cannot be identified pre-conviction. There is a provision [2] – which deals with Thornberry’s claim about the availability of defence witnesses – for the defence to apply to the court to have defendant anonymity lifted in order to induce potential witnesses to come forward.

There are those who argue, post-Clifford, that this provision is not in the public interest. But it has been on the Irish statute book for 33 years. Should England and Wales have a similar provision, but for a rather wider range of sexual offences?

Comment

As we pointed out in our last post, in 2013 fully 32% of those charged in England and Wales for rape, child sex abuse, indecent assault and other types of sexual offending were not convicted or cautioned.

10,365 sexual offences were proceeded against in 2013. 5,659 people were found guilty. 1,349 people were cautioned. This means that 3,357 people (just over 32%) were not convicted and retain, in law, their innocence. Nearly 3,500 people, in one year alone, risked being publicly identified with the slur and stigma of sexual offending and carrying that burden into the rest of their lives.

Note that this is despite the relaxation of the law since the 1990s in terms of corroboration and hearsay. The conviction rate in 2013 for this kind of offence was truly lamentable. It confirms our belief that the Crown Prosecution Service does not weed out enough cases before the charging stage.

Once a sexual complaint is made, and as long as the complainant sticks to his or her complaint, the likelihood is that the matter will proceed to charge and to trial. If there are internal inconsistencies in the complainant’s evidence, some attempt will be made by CPS and police to close up those holes. But the inconsistencies – unless they make it crystal clear that the complainant was fabricating and that no offence could have taken place – will not usually lead to a decision not to prosecute. This is because the CPS prefers to have such matters tested by the court, rather than take such decisions itself. It is politically more expedient, in the current climate, to be criticized for obtaining too few convictions than to be criticized for being ‘soft’ on sexual offending.

To see how the CPS’s sometimes cavalier attitude towards charging and proceeding to trial can work out on the ground, let’s look at the prosecution of Nigel Evans, former deputy speaker of the House of Commons. This was a high-profile case. A prosecution was mounted even though complainants said in court that they did not consider themselves victims of any criminal offence, nor had they wanted to complain to police. Some of the witnesses “suggested they felt pressured by police into appearing as alleged victims in the high-profile trial.”

There was another complainant who alleged rape against Evans, thought the facts were strongly disputed around the issue of consent. The prosecution aim here was clearly to use the weaker allegations to bolster the rather stronger one, a technique known as “bundling”.

Nigel Evans was acquitted on all counts. He is having difficulty recouping his £130,000 legal defence costs. He is likely to carry the effect of these failed proceedings publicly for many years. Personal details of his personal life have been under the public gaze as a result.

So the question ought to be, not “why should there be pre-conviction defendant anonymity in the these cases?”, but “why should there not be?”. The government, CPS and police cannot have it both ways. If they insist for reasons of political expediency on charging people a third of whom they know will probably be acquitted, then the case for defendant anonymity is overwhelming.

Michelle Healey argues at Halbury’s Law Exchange that:-

… those accused of sexual offences ought not to be named unless they are charged. This would offer a person who is investigated but then exonerated the chance to move forward with their life without negative publicity. It would also ensure that if the CPS were making a charging decision they would look only at the offence charged and assess the weight of the evidence to see whether there is a reasonable prospect of success, rather than looking at numerous allegations and allowing potentially weaker allegations to be charged in order to shore up a conviction on potentially stronger cases… Once charged then it is right and proper that a suspect be named, as they would be in any other criminal case.

Healey is working along the right lines, but she does not go far enough. If defendant anonymity is lifted post-charge and pre-conviction, untold damage can still be done where there is an eventual acquittal, as there was in 32% of cases in 2013. Defendant anonymity in sexual offence cases should be in place from the moment of original complaint until the moment of conviction.

  1. This provision doesn’t extend to other kinds of sexual offence.  ↩
  2. Section 8 (3) of the Criminal Law (Rape) Act 1981.  ↩

Defendant anonymity (part 1)

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In England and Wales, the complainant in a sexual offence prosecution is conferred life-long anonymity. Nothing can be published which is likely to lead members of the public to identify them. It would be contempt of court to do so.

Should the defendant in such cases be granted anonymity also, at least unless and until convicted?

There has been vigorous debate over the last few years about this. Over two posts, we will describe some of the arguments made for and against, and then contribute some thoughts of our own.

A summary of the debate

A lively discussion took place in November 2013 between philosopher A C Grayling and Emily Thornberry, Labour MP and Shadow Attorney General.

A C Grayling’s explicit “one fundamental issue at stake” [1] is “the unacceptable risk of besmirching innocent people by parading them in public as being under suspicion for abhorrent crimes”. Even if a defendant in this kind of case is acquitted, stigma and suspicion are likely to remain. Conferring anonymity on a defendant until a conviction takes place honours the presumption of innocence and avoids the jeopardy of causing serious injury to that person:-

… publicising the name and alleged crimes of a “suspect”—a person under suspicion; a person under a cloud therefore—is already to begin punishing that person, and if she or he is innocent, that punishment is unjust [2]…

For A C Grayling, all arguments which try to counter this fundamental issue are slippery slope arguments.

Thornberry disagrees. A C Grayling’s argument is based on “a patrician hunch that the public is too stupid to grasp the meaning of the presumption of innocence or of an acquittal by a jury of one’s peers” [3]. We do not have a police force that keeps the public in the dark [4]. The aim has always been that the public works with the police to solve cases. Naming defendants can jog the memory of potential witnesses, both for the prosecution and for the defence [5]. Anonymity would not be in the defendant’s best interests, because exculpatory witness will not know to come forward [6].

Thornberry continues:-

By offering [suspected sex offenders] a layer of protection not provided to other suspects, we would fan a pernicious myth that there is something inherently unreliable, unstable and vindictive about rape complainants, setting them apart from other types of victim.

for…

Recent research by the… Director of Public Prosecutions… has discredited the idea that false allegations are a particular problem with rape cases… Introducing anonymity for rape suspects would set the clock back on efforts to bring a more enlightened approach to these cases.

But that’s not the point. No one is claiming that the system is rife with false allegations, though there are probably more than the DPP’s statistic would lead us to believe. In any event, there are doubtless more cases where a complainant’s evidence is unreliable for a whole range of possible reasons [7]. The better test would be to inquire as to how many convictions and how many acquittals there have been for sexual offences over a given period.

In May 2014 the media reported that “conviction rates in England and Wales for rape, child sex abuse, indecent assault and other types of sexual offending fell from 61 per cent to 55 per cent in 2013”.

Fully 32% of those charged who were not convicted or cautioned. This suggests (1) that too many complaints proceed to prosecution (see more on this in our next post); and (2) that A C Grayling’s “one fundamental issue” is more telling than Thornberry wishes to admit.

Barrister Blogger is supportive of defendant anonymity. He points out that it was in fact the law, in rape cases, in England and Wales between 1976 and 1988 – it’s been done before. Yes, he admits, there is a logical inconsistency in granting defendant anonymity in sexual offence cases but not in other serious cases, such as murder. But:-

The fact is that the law already recognises the unique difficulties of sexual cases by providing blanket anonymity to complainants, before, during and after any trial. Similar considerations, including a justified fear of a crazily disproportionate reaction to an untested allegation, suggest that defendants in these cases should at least be given a similar protection until they are convicted.

What’s more, he says, anonymity would lead to fairer trials, especially in celebrity cases, and it would “avoid the pre-trial public relations battle”.

Legal academic Richard Glover is not convinced. He takes the point about potential damage to innocent defendants’ lives and reputations, and “can certainly sympathise with” their predicament. However, he feels that “the important principle of open justice” militates against defendant anonymity.

That’s probably the strongest point against defendant anonymity. But ultimately it’s not compelling. Open justice is a hallmark of a democratic society. Yet the principle has already been breached for complainants. And what price “open justice” where the outcome of an acquittal is that an innocent person justifiably fears unwarranted and undeserved social stigma?

In our next post we consider the position in the Republic of Ireland, where there is defendant anonymity in rape cases, and we set out our own conclusions.

 

  1. for which he is roundly criticized by Thornberry.  ↩
  2. Barrister Blogger and law academic Richard Glover both put forward versions of this argument, one to support it, the other to say it is “misleading”.  ↩
  3. This is an ad hominem argument, and so probably should be discounted. No one is suggesting people are stupid. But the emotional potency surrounding sexual offences is so great that, despite logic, stigma is likely to last, despite acquittal. As in: “Wasn’t
    s/he the person who was accused of…?”      ↩
  4. Which way does Thornberry want it? We are being “kept in the dark” about the identity of sexual offence complainants, and she and most people believe that that is right and appropriate. Rather than using emotive language, it would be better to concentrate on why, in her view, there should be no parity here between complainant and unconvicted defendant.  ↩
  5. A specious argument. If publicity does help to bring forward any further complaints, why not gazette all the names of defendants charged with sexual offences? Because that would smack of witch hunt and persecution. Thornberry’s “emboldening more victims” arguments carries little weight.  ↩
  6. This is not how it works. A defendant and his or her lawyers can and will find their own witnesses.  ↩
  7. though it is almost blasphemous to say so in the current climate…  ↩

Ministers of justice?

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In England and Wales [1], criminal trials take place adversarially. Before an impartial tribunal, evidence of alleged criminality is put forward by the Crown and answered by the defendant, and a jury (in serious cases) determines which account is true.

For justice to result, certain principles have to be kept to. Some of them are:-

  • it’s for the prosecution to prove their case, not for the defendant to disprove it
  • a defendant is regarded as innocent until proven guilty
  • a jury cannot convict unless it is sure [2] that the defendant is guilty of the offences charged
  • the judge and prosecutor must act according to standards of impartiality and fairness.

Previously we argued that both a new-found focus on the ‘victim’ and a growing irrational moral panic about sexual offences is changing the criminal justice system in England and Wales for the worse – and particularly in sexual offence cases. These twin emphases are disturbing the critical balance of fairness in this adversarial process.

Here we claim that prosecutors too often allow themselves to be sucked into this obsession with ‘the rights of the victim’ and morality. Insofar as they take that step away from objectivity, they begin to act as advocates for the ‘victim’ rather than as ministers of justice.

But first, some generally accepted international standards by which prosecutors are supposed to act.

Standards

In 1990 the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders set out a number of guidelines, among them:-

13. In the performance of their duties, prosecutors shall: (a) Carry out their functions impartially and avoid all… discrimination; (b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;…

It is interesting to note that a balance between the position of the victim and the suspect is explicitly required here.

The American Bar Association sets the following out as Standard 3- 1.2(c) of its prosecution standards:-

The duty of the prosecutor is to seek justice, not merely to convict.

The Standards of Advocacy of the Public Prosecution Service for Northern Ireland state:-

4. …It is not the duty of Prosecution Advocates to obtain a conviction by any means at their command…

6. Prosecution Advocates must have regard to the comments of the court in R -v- Gonez [1999][3].

“……it is the role of prosecuting counsel throughout a trial… to act as a minister for justice… It is incumbent on counsel prosecuting not to seek to excite the emotions of a jury… A final speech should… be a calm exposition of the relevant evidence,… and an equally calm invitation to draw appropriate inferences from that evidence.”

There is more helpful guidance in the judgment of the Court of Appeal in Northern Ireland in the case of R v Anthony West:-

In Boucher v. R [1954] 110 CCC 263 it was stated:- “It is the duty of Crown counsel to be impartial and exclude any notion of winning or losing. He violates that duty where he uses inflammatory and vindictive language against the accused and where he expresses a personal opinion that the accused is guilty.”

That judgement mentions with approval the passage from R v Gonez and quotes from paragraph 1701 of Code of Conduct for the Bar of Northern Ireland:-

“It is not the duty of prosecuting Counsel to obtain a conviction by all means at Counsel’s command but rather to lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution…”

and from the Public Prosecution Service Code, paragraph 5.1.5:-

“A prosecutor must not advance any proposition of fact that is not an accurate and fair interpretation of the evidence…”

Commentary

It used to be the invariable rule that prosecution counsel would steer clear of talking to any prosecution witness, in an attempt to preserve and demonstrate impartiality. It’s now common for the complainant to be seen by counsel in sexual offence cases, before and during the trial. No one is suggesting that anything improper takes place. Often, the visit is to ensure that the complainant is feeling supported and is having his or her needs met. Still, this risks damaging an important principle of apparent impartiality.

There are other examples of a tendency towards prosecutorial non-objectivity – or, which is as bad, the appearance of it – which we will explore more full in later posts. Here are some of them in a nutshell.

The blurring of lines – in prosecution opening speech, cross-examination and final speech – between, on the one hand, evidence of criminality and, on the other, evidence of unwisdom, sleaziness or inappropriateness well short of criminality.

A habit of commenting on a defendant’s people skills, parenting skills, remoteness or ‘touchy-feely’ tendencies [4], or general demeanour.

The use of ‘similar fact’ or ‘bad character’ rules and applications to bring into the examination of alleged criminal behavior all kinds of actions or omissions which, in themselves, are simply part of the rough and tumble of everyday life.

The repeated use of ‘victim’ and ‘paedophile’ where less emotive words such as ‘complainant’ and ‘sexual offender’ would do.

To be scrupulously fair, prosecutors are in a cleft stick. They want to get appointed to the next case. Unless there is corroborative evidence, it is often the word of complainant against defendant. Quite naturally, prosecutors will feel frustrated at not having a knock-down piece of evidence to wave around, or a killer point to be able to make to the jury. So they amass material, some of it relevant, some of it less so, in the hope that, if they throw enough mud, some of it will stick.

The line is a fine one, but it is quite frequently transgressed. To the extent that this line is crossed, justice is not well served.

 

  1. as in various other jurisdictions.  ↩
  2. beyond reasonable doubt, though that formulation is used less nowadays.  ↩
  3. [1999] All ER (D) 674  ↩
  4. If a defendant is “remote”, he has something to hide. And, if he is ‘touchy-feely’, that’s evidence of, well… you can see what we are getting at here.  ↩

Victim-centered justice? (part 2 of 2)

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[Go here for the first part of this extended post…]

Gittos claims that, as it turned out, this new approach helped pave the way…

for a justice system which has spent 16 years completely reorientating itself away from objectivity and dispassionate assessment of evidence and towards elevating the rights of the victim at the expense of due process.

It’’s a good point. Nowadays a complainant can give evidence from behind a screen or by video link. His or her witness statement will have been taped, and it will often form the bulk of that person’s evidence at any trial. Meanwhile, the defendant sits in a dock, most often behind a thick glass screen, wearing headphones so that s/he can hear. S/he is semi-detached from what’’s going on in court.

The complainant will often be asked whether s/he needs a rest break, and will often be allowed to sit to give evidence. None of this solicitousness is likely be afforded to the defendant [1]. It could easily look (although this is surely not the intention) as if the whole process is ‘on the side’ of the complainant, and by implication ‘against’ the defendant.

In any event, as Gittos points out, the screen/ video link provision:

…removed an ancient legal principle – that a defendant should stand face to face with their accusers – in order to make the experience of engaging in the process easier for victims.

And then there was a further development, one which again appeared at the time to be beneficial.

[I]n 2007, Harriet Harman introduced the Victim Impact Statement. This allowed for victims to read prepared statements to the court, detailing how a crime had affected them emotionally, prior to the judge making a decision on sentence. Judges were quite open in stating that such statements could materially affect the sentence passed.

Gittos is arguably right to say:

[T]he sentencing process, which had been traditionally undertaken in the name of preventing further harm to society at large, became about repaying, through a deprivation of the defendant’’s liberty, the emotional harm done to the victim.

On the face of it, there is much that was positive about these initiatives. Who wouldn’’t want to make a demanding and difficult process easier for complainants? And why not involve them more in sentencing outcome? But the point is this.

Add together the provisions designed to support complainants and facilitate the difficult process of making a complaint and giving evidence. That is: taped complaint interview(s); the screen or video link; judicially expressed concern for the complainant’’s comfort and wellbeing; and court orders conferring lifelong anonymity on complainants, while the defendant’’s identity and personal story is often explored in excruciating detail for all to hear [2]. Compounded together, with others, these provisions can have an effect on the dynamic of any trial.

They can and often do detract from balance and objectivity.

They tend to confer an aura of dignity and truth-telling on a complainant. (S/he may or may not be telling the truth, but that’’s not the point.)

They tend to elicit sympathy, whereas this process should be about fact, not emotionality. It’’s a real trial, with real outcomes, not Boston Legal.

Taken together, they can easily communicate a sort of diffuse impression on a jury that the defendant is more likely to be guilty. S/he may be, of course, although, equally, she may not. But that determination, as to guilt or innocence, must only be about the quality of hard evidence, not about sympathy or about how courts and trials are set up to run.

As, again, Gittos puts it:

These reforms represented a clear move away from a criminal-justice system that prioritised objectivity to one which prioritised the stories and feelings of the victim. The victim went from being the invisible ‘third party’ in disputes between the state and the citizen to being the central focus.

Criminal trials, and especially those for extremely serious offences, are meant to be about an analysis and a determination. Analysis of the evidence. Determination of the truth: innocent or guilty. Anything that gets in the way of these ends brings about unfairness and damage, not only to human lives but also to the system of justice. Arguably, a strongly victim-centered criminal justice system is, in the end, damaging to justice, to fairness, and to the rule of law.


  1. who (and it needs to be said really quite often) is adjudged at this stage in this prosecution process to be as innocent as the complainant.  ↩
  2. This theme will be the subject of later posts.  ↩


Victim-centered justice? (part 1 of 2)

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Here’’s how the prosecution system worked in England and Wales until at least 1994. (This applied to sexual offence cases and also to other kinds of offence based on a complaint.)

After a complaint a police inquiry would be initiated. The complainant was an important part of that process, but the police and CPS would be agnostic, for the moment, about whether s/he was reliable or telling the truth. After all, there could be any number of reasons for a complaint, some of them positive, others less so; and recall of events exists on a sliding scale of accuracy [1]. Of course, the whole point of the police inquiry was to test whether the complaint had any basis in fact and was evidence of a crime committed.

The police would follow up any number of relevant leads, and not just those supporting a prosecution. The aim was, in part, to assess the veracity and reliability of the evidence as the inquiry developed.

At a suitable juncture, a file would be sent to the CPS, and an assessment would be made on various criteria. On the evidence gathered, was a conviction more likely than not? Was it in the public interest to proceed to trial? At this point, instructions could be given to the police to make further inquiries to gather more evidence or to finesse that which they had already collected.

The key point here is this. The police and the CPS would together be acting independently. They were not agents of the complainant. They did not represent him or her in any way. Any trial would, importantly, be R [2] v John or Jane Doe, not Complainant A v John or Jane Doe. The complainant was a witness: a vital one, but nothing more. His or her evidence was to be evaluated like the evidence of any witness, for veracity and reliability.

Yes, this system could come over as a little aloof. Mostly because care would have been taken to treat the complainant as a witness and his or her evidence as just that: evidence, like any other. The task of police and CPS was to keep at arm’s length from the complainant and not to get sucked in to any agenda being worked out by him or her.

And then it all changed……

Luke Gittos sets out usefully what then happened.

In 1999, the New Labour government decided that [the] focus on objectivity and impartial judgement failed to do justice to the victims of crime. Jack Straw… said [3]: ‘”For too long, victims of crime have not been given a proper support and protection they deserve. This must change. I am determined to ensure that their needs are placed at the very heart of the criminal-justice system” [4].’….. The Youth Justice and Criminal Evidence Act 1999 allowed evidence from vulnerable witnesses to be given behind a screen or via a video link…. The Criminal Justice Act 2003 then extended these protection to all witnesses, whether considered vulnerable or not, as long as certain statutory criteria were met……

The intentions were no doubt commendable. There is every reason why complainants should be treated kindly and respectfully and their allegations should be taken seriously. The exercise of sensitivity towards a complainant is right and proper in itself. Apart from anything else, such care also helps ensure that complainants feel able to come forward in the first place.

But this should never be – and should never have been – at the expense of objectivity and impartiality……

[continued in the next post]


  1. As a hedge against this, the personal consent of the Director of Public Prosecutions used to be required for a wide range of sexual offence prosecutions. (Consent is still needed in a much narrower range of abuse cases.) Until 1994, corroboration (namely, some form of independent evidence confirming an element of the complainant’’s testimony) was also required by common law in certain cases.  ↩
  2. ‘‘R’’ = ‘’Regina’’, ‘”the Crown’’.  ↩
  3. ‘Partners Against Crime’, Victim Support Magazine, Summer 71, p 8. ↩
  4. There is an obvious problem with what Straw said here. He appears to assume that the complainant is axiomatically believable and reliable as a witness. But this is the very thing that any well-founded trial system is meant to determine – on the basis or evidence and nothing else. Should a complainant’s “needs” be placed “at the very heart of the criminal-justice system”? Not at the expense of a fair determination of guilt or innocence.  ↩


Aims and Principles

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The aim of Salem Redux is to explore the criminal law landscape, prosecution policy, and advocacy practice relating to the investigation, prosecution and trial of alleged sex offences in England and Wales.

Sex offence allegations are currently a vastly conflicted area of public culture in the UK. It is hard to think of an area of civic concern more open to knee-jerk reaction, scapegoating and name-calling.

Driven in part by an increasing obsession with sex abuse issues, huge changes have for some years been taking place in the criminal justice system of England and Wales. Those changes have damaged the rule of law and have taken place without adequate public awareness of their deeper consequences. Juries now regularly struggle, in sex offence trials, to find the wood for the trees, and are often left confused and bemused by the task before them.

Strong feelings are naturally unavoidable when it comes to alleged acts against children and young people. Everyone wants to preserve our young people from harm. But to allow emotionality to drive swings in policy, without comprehensive open debate, will build problems for society and individuals which may take decades to rectify – if indeed rectification ever takes place.

There is therefore a pressing need to conduct a proper public debate on the following topics:-

  • we need to discuss the corrosive effect on defendants’’ rights of the last twenty years of government policy decisions regarding admissibility of evidence generally in criminal cases, but particularly in connection with the prosecution of alleged sex offences.
  • we must identify and analyse the ideologies at work behind these policy decisions – both within the present government and the preceding one.
  • we must speak honestly about the yo-yo mood swings in public and media about sex offences in response to high-profile acquittals (Michael Le Vell, Nigel Evans) and then convictions (Stuart Hall, Max Clifford, Rolf Harris). We must honestly address the issues which lie behind that pendulum effect, and the ways in which governments have responded to those mood swings.
  • importantly, we must spot – and then critique – the prioritization (and almost canonization) of the ‘‘victim’’ complainant [1] within the criminal law – because this ‘’victim’’ mentality is leading to a gradual erosion of defendants’’ rights and a growing adoption of ‘’conviction success’’ ideology in the Crown Prosecution Service and police.

This is not in any way an anecdotal, existential or experiential blog. This blog tries to promote objective debate. Alongside that, it argues for an appreciation of the continuing value of centuries-old principles of criminal law in England and Wales, principles designed to balance justice with fairness.

Historically, English law has always argued that it is better, if it comes to it, to acquit a guilty person rather than convict an innocent one. That wise principle is now under attack as never before, and we must stop it from being further damaged.

The by-line to the blog, “”Judicial Barbarism?””, is taken from a Guardian ‘Comment is Free’ article by Simon Jenkins dated July 8, 2014, in which he writes:-

The case for finding new ways of detecting and treating [child abusers] is overwhelming, as is the case for helping their victims. That is where the state’s money should go. Yet we deal with sex crimes by licensing anonymous accusers and staging celebrity show trials, with lawyers in gladiatorial legal combat before juries. From the attendant publicity, no reputation survives. It is judicial barbarism.


  1. We put ‘’victim’’ in quotation marks because the matter is not as simple as it seems. Many complainants are no doubt telling the truth as they see it. Some are not. It is also arguable that, where a defendant is wrongly accused of a sex offence and is innocent, s/he is also a ‘victim’, if we are going to adopt that terminology. To speak of the ‘victim’’ so readily can mask the real issues, which are about justice and fairness – for all.  ↩