RAPE TRIALS & JURIES

Jolyon Maugham QC, the well-known Remain campaigner and tax law specialist, writes in the New Statesman of the ‘impunity’ that he believes the legal system grants to men who commit rape. He is shocked by the ‘attrition rate’ between the number of sexual offences of rape and the number of convictions in Court. He cites figures from the Office for National Statistics that suggest that in 2013 ‘there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.’ He believes ‘the solution can only be to change the law’, and questions whether juries should try rape cases at all.

Whether juries are fit to try many kinds of case is a question that is never long out of public discussion. There are those like the outgoing director of the Serious Fraud Office who thinks juries should not try serious frauds, because they are too complicated; others say the same about cases with difficult scientific issues; and many in the senior judiciary think that defendants should lose the right to choose jury trials in cases that are too simple, such as shoplifting (not so simple if you wrongfully acquire a conviction for dishonesty and cannot get a job). In short, the jury has many enemies.

But the jury is you and me and our neighbours. Young and old, wise and foolish, all made of the same crooked timber of humanity as the judge, the police officer and the defendant on trial. The genius of this accidentally arrived at way of doing justice is that twelve turns out to be the right number to even out the differences. In her seminal 2010 study Are Juries Fair?, Professor Cheryl Thomas was permitted to speak to hundreds of jurors about their deliberations. The answer to her was Yes, with caveats including the need to give more help, such as written directions on the law and a list of the questions jurors should ask themselves on the ‘route to verdict’. The Courts have adopted most of her recommendations.

Professor Thomas corrected one of the ‘Misconceptions about jury verdicts in rape cases’: ‘contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate)’. That figure was consistent with the general run of cases, and does not suggest that there is anything peculiar about rape trials that sets them apart from others. The hallmark of many rape trials is that the jury have to decide between two contradictory accounts – complainant v defendant – with little or no supporting evidence on either side. Trials like that are not exclusive to cases of rape. With the prosecution having the burden of proving their case so that the jury are sure, the decision for the jury in any such case can be hard.

The prevalence of sexual offending is a great social evil, but the legal system and the alleged weakness of jury trials in particular can’t be held responsible for men committing rape, any more than they can for the upsurge in knife crime or burglary. Myths still abound about disrespectful treatment of women complainants by the police and in Court. Police officers, prosecutors and judges receive specialist training in sex offence work; abusive cross-examination by defenders is rare and judges do not tolerate it. That may not make the prospect of reporting a rape to the police and following it through to trial much less daunting, but perpetuating myths may contribute to the ‘attrition rate’. We can surely improve the support given to victims of sexual abuse, but changing the rules is not the way forward.

 

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A Hero of our Times?

It’s not every day that one’s client is a legendary figure – as mine was, in the shape of Vladimir Bukovsky. It turned out that he was far too ill to be tried on the charges that he faced, of having indecent images of children, which he denied. At 75, his body was giving out, and the Judge at Cambridge Crown Court found his cluster of illnesses meant he could not effectively participate in the trial, even via a videolink from his home. The prosecution was stayed and remains in suspense until, perhaps, he is well enough again. This was a man who took on the Soviet state as a boy – he was expelled from school and then from university in 1961 for ‘lacking the character of a Soviet citizen’, and he spent the next 12 years in and out of prisons, labour camps and psychiatric wards – for the offence of ‘hooliganism’ – or as we would say, for telling the truth about the state’s systematic abuse of human rights. In 1971 he smuggled documents out of Russia that showed how political prisoners were treated as insane – and was promptly locked up again.  Recognised by now across the world as a prisoner of conscience, in 1973 he won his freedom, albeit in exile, by being exchanged like Cold War chess pieces for the leader of the Chilean Communist Party, Luis Corvalan, whom the Pinochet regime had imprisoned after the military coup. Bukovsky settled in the UK, and became a figurehead for the pro-democracy Russian diaspora all over the world. The Yeltsin government eventually restored his citizenship that the Soviets had removed, but Putin stripped him of it again when he had the temerity to stand against him in the 2008 presidential election. A man of extraordinary courage, but what a dismal last chapter to a heroic life.

John Plumstead

Yesterday I attended the memorial service at the Temple Church for His Honour Judge Plumstead, who died aged 64 in September. The church was packed: family, friends, colleagues from Bench and Bar, and members of the Court staff at St Albans, where he sat. The service was both grand and intimate, with personal reminiscences, a poem read by his daughter, hymns for the congregation and pieces for the superb Temple choir, and the stirring words of comfort that the Church is so good at providing on occasions like this. John Plumstead was a rarity among judges – many are respected, some are liked, but almost none are loved. He was.

Are Juries Unfit to Try Rape Cases?

Julie Bindel (Guardian 12 August 2016) thinks it’s wrong for juries to try rape cases because they lack expertise and don’t find enough defendants guilty. If lack of specialist expertise barred randomly selected members of the public from being jurors, there would not be many jury trials left. Citizens, in committees of 12, are remarkably good at dealing with complex cases of all kinds, and at doing justice. Judges generally agree. Trial by one’s peers is not something to toss away lightly on the basis of stereotypes and misconceptions. Working out who is telling the truth is not a matter for experts in any type of criminal case. Our fellow citizens are good at it, whichever segment of society they come from. Yes, they can sometimes produce results that the powerful dislike: stand up Clive Ponting. It’s sad that a brave campaigner for the powerless like Julie Bindel comes out with the same sort of thing. Juries have far more legitimacy in trying serious crime than a case-hardened panel of ‘experts’ ever would.

In rape cases juries are not less likely to convict: according to Professor Cheryl Thomas’s 201o study ‘Are Juries Fair?’ (answer: yes), in the 2-year period she studied juries, they convicted more readily in rape trials than in comparable cases of serious violence, at 55%. In the larger Court centres across England and Wales, the overall conviction rate ranged from 69% to 53%. The reasons for the differential were unclear but may be due to uneven distribution of different kinds of cases between the Courts. So rape convictions are not out of line with the general pattern.

Very few rapes are stranger rapes; in many cases, the accused and the accuser know one another and are the only significant witnesses. Where the issue is consent, the fact that ‘penetration’ has occurred is admitted and needs no scientific proof. The jury invariably decide the case by weighing one person’s word against another. That is seldom an easy task, in Court or outside, when judging an accusation of rape or anything else. The law demands –rightly – that no one may be convicted of an offence unless the jury are sure of guilt. They may think the evidence proves the accused is probably or possibly guilty – there may be strong suspicions – but still not enough to get over the line into being sure. That high standard protects the innocent from false or mistaken accusations – a protection of great value for which we should all be thankful.

Juries in rapes now receive explicit legal directions from the judge that are designed to dispel myths about complaints of rape. There are statutory restrictions on evidence about an accuser’s ‘sexual history’, which are rigorously applied. Juries hear about it only if it would cause serious unfairness to the defence if it was withheld. Judges have to strike a balance.

Prosecutors and Judges have specialist training before they can take on rape and serious sexual offence cases. Prosecutors are required to inform witnesses of the type of questioning they may face from the defence. In cases involving vulnerable witnesses, the Judge now receives the questions to be asked in cross-examination in advance, and may disallow inappropriate ones.

We could do more. A compulsory programme of vulnerable witness training for all advocates is coming. We could make the Court experience better for witnesses– by for example restoring the canteens that went in a recent mean-spirited round of cuts, so people at least can get a cup of tea while waiting. The MOJ could see to it that trials come on quicker.

What Julie Bindel proposes is to strip away a vital civil liberty because she thinks too many guilty men walk free. Perhaps some do: it may be a high price for our freedom, but it’s still worth paying.

An Open Letter to Jeremy Corbyn

Dear Mr Corbyn

I write to you as my constituency MP, to urge you to use your vote in the House of Commons to block the invocation of Article 50 of the Lisbon Treaty, and so prevent the disaster that Brexit will surely bring upon this country. You are widely respected for your work in North Islington, one of the most deprived constituencies in the UK, where you have stood up for the poor and dispossessed whose interests you have at heart. The most vulnerable will go the wall first.

The referendum result should not be seen as an unambiguous statement of the electorate’s settled will to leave the EU: it is too narrow for that interpretation; and the Leave campaign was a farrago of half-truths and downright lies, which will have deceived a fair number of voters about what Brexit would mean. If anything, the so-called ‘Project Fear’ by Remain underestimated the damage. The poorest will suffer the most. We can already see that the collapse of the currency and the stock market is sending the economy into a state of shock, perhaps recession. Investments are being suspended or stopped. Pension funds are worth less. Employers will make redundancies, and cut wages. There won’t be enough tax revenue for benefits or basic services.

Democracy is not served when the dice are loaded, as they were here, by a feral press, and by self-serving mendacious leaders. Accepting the result just because it’s a vote is not good enough in these circumstances, when so much is at stake. Your vote against Brexit in Parliament, and your ability to explain your vote, could save the country from the disaster it faces. It will save the very people who are closest to your heart, and their children and grandchildren, from years of intense uncertainty (at best) – and maybe it will even save Parliamentary democracy itself. Ask yourself this: if the Tories had offered a referendum on the death penalty, and 51.9% of the electorate voted for it, would you just accept it?

It’s not too late, even now. Please don’t let them have their way. Vote Brexit down.

 

Yours sincerely

 

Francis FitzGibbon

 

 

An Open Letter to Michael Gove & Boris Johnson

Dear Mr Gove and Mr Johnson

I won’t question your motives: I accept you thought that Brexit was genuinely in the United Kingdom’s best interests, long and short-term.

Please look around you today: the markets here and across the world have fallen, because of Brexit, wiping billions off the value of pensions and businesses. Our international credit rating has slipped. The City is preparing for an exodus – of people and their tax revenues. The Bank of England is preparing to put £250 billion into the economy – some one will have to pay that back, one day. We have lost a Prime Minister. We have lost our EU Commissioner. The peace in Northern Ireland is at risk. Scotland may secede. The young see their horizons and opportunities closing. We are losing friends around the world.

These losses, and others we don’t yet know about, may continue, indefinitely. You cannot have wanted any of this.

The result was close – 51.9% is hardly overwhelming, not in a vote about the nation’s future, for generations to come.

Think again. It’s not too late. The protest voters have made their protest, and many are regretting it. The minority of out-and-out racists must not be allowed to dictate to the nation. We know now that you will not have £350 million per week to spend on the NHS, or anything else; we know that immigration will continue. While the exit process and the redrafting of myriad laws is underway, ordinary government will be hobbled, for years to come. The control you take back will be control of a poorer, unhappier, smaller, lonelier country.

None of this is in the national interest. Show wisdom and courage. Admit the mistake, measure the EU’s faults against the greater dangers that are already beginning to hurt us. It’s not too late. Re-engage with the EU and the member states. ‘One more such victory, and we are undone.’

Yours sincerely

 

Francis FitzGibbon

Do You Believe Me?

The Metropolitan Police Commissioner has announced that officers investigating alleged sex offences will no longer be expected to presume that the complaints are true. That does not mean they should presume they are untrue – rather, that the officers should remain open-minded while ensuring that complainants get the police’s full support in order to give their accounts without undue stress.

‘Do you believe me?’ is the perfectly reasonable question that clients ask advocates, and which advocates dread. Answer ‘no’, and trust is gone for ever; answer ‘yes’, and you have become partisan and may find yourself seriously embarrassed later. The proper response has to be along the lines of ‘I mean no disrespect, but whether I believe you or not has nothing to do with my ability to represent you and put your case before the court as strongly as possible’. A respectful distance is essential.

What should happen – and it takes a while to learn how to do it – is suspension of one’s everyday inclination either to believe or disbelieve what some one says. The advocate should neither believe nor disbelieve; instead, you assess the account, put it in context with other evidence in the case, and look for its strengths and weaknesses. You may give your opinion on whether the tribunal will accept it, on the applicable standard of proof. Your own view of whether the account is true or not is unlikely to be a reliable guide to how others will receive it. If you form a view either way, you must put it aside. Advocates should never forget the wise words of Megarry J in John v Rees [1970] 1 Ch 345

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not: of unanswerable charges which, in the event, were completely answered; with inexplicable conduct which was fully explained…