Tag Archives: sexual offenses

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.