Jury trial under attack – this time from the feminists, again.

Last week I sent this letter to the Guardian after it endorsed a report by a coalition of feminist groups about the current state of the criminal justice system. 

Dear Sir

There does remain much to be done to improve the handling of rape complaints by both the police and the CPS.  But it was surprising to see the Guardian endorse a report from a number of feminist groups which also includes a wholesale attack on the rights of those accused of such crimes. (“Our broken system lets rapists off and victims down.  We must overhaul it.”, 5 December.)  This report endorses arguments that we must believe the victim, further limit disclosure to the defence, ban questioning about sexual history, abolish jury trial, replace the adversarial system including challenging cross-examination with the inquisitorial system and even questions the criminal standard of proof, whilst retaining in full criminal sanctions that mean prison sentences of many years.   

Your leader makes no mention of the near catastrophe that disclosure failures caused in the case of Liam Allen and several others highlighted in 2017. There is no reference to the report in 2018 by Professor Laura Hoyano, commissioned by the Criminal Bar Association based on interviews with dozens of criminal barristers who both prosecuted and defended in the cases, that found that s.41 [limits on questioning on sexual history] was working well to prevent inappropriate questioning of complainants. Nor was there mention of the recent article in the Criminal Law Review by Professor Cheryl Thomas based on interviews with actual jurors in rape cases which suggested that juries do not necessarily harbour old fashioned rape myths.   

It ill befits the UK’s leading liberal newspaper to be seen to endorse such extreme, one-sided views whilst simultaneously ignoring important counter arguments. 

Yours faithfully

The Report

Much of the report entitled “The Decriminalisation of Rape” is concerned with the role of the police and particularly the CPS in the investigation and prosecution of rape and other serious sexual offences.  A lot of the material in the report explains the current dispute in which at least one of the groups behind it, the Centre for Women’s Justice, has recently been granted permission to judicially review the CPS over an alleged policy change to encourage prosecutors to discontinue what the CPS regard as weak cases so as to improve the overall success rate of CPS prosecutions.   As I said in my letter, I am sure much remains to be done in respect of both the way the police handle complaints of rape and other serious sexual assaults and how the CPS handle cases referred to them by the police.  I will leave it to others better qualified than me to comment on such matters.

My concern is that the organisations behind the report have taken the opportunity to have another go at what is alleged to be a trial process no longer fit for purpose as far as these types of offences are concerned.    None of the arguments is new.   They have all been answered in the past by various commentators.   Presumably they are included in the report in the hope that if you repeat something often enough some people will eventually assume they must be true.  

I shall pass quickly over the obvious but embarrassing mistake in the Executive Summary [p.4] where it is claimed that a unanimous jury verdict is needed for a conviction.    The report includes arguments about juries being biased against rape complainants and incapable of avoiding so called “rape myths” about how complainants might behave after a sexual assault.   The report states without providing any evidence that;

“it has been widely accepted by criminal justice bodies that many members of the public continue to believe in long-standing ‘myths and stereotypes’ relating to rape, which do not correspond with reality, result in disbelief of victims/survivors, and are now out-dated in the eyes of the law. One very significant obstacle for the prosecution when seeking to prove its case is therefore that juries may arrive at court with preconceptions – about how a ‘true’ victim will behave in the aftermath of a rape, for example – which may be based on stereotype rather than evidence.”   [p.23] You wouldn’t know it from reading this report but as criminal law practitioners will know, judges these days direct juries about such myths either at the start of the trial or before the complainant gives evidence and often repeat the directions as part of the summing-up. 

At about the same time as the report was published an article by Prof Cheryl Thomas appeared in the Criminal Law Review[i].   Prof Thomas is the only person authorised to speak to jurors after their jury service.     She carried out interviews with 771 jurors from four court centres over a two year period.   Her research suggested that contrary to the opinion expressed in the report jurors do not hold the sort of prejudiced views complained of.  No doubt it may be said the sample of jurors could have be larger or that a different group of jurors might have given different views on the matters asked but this is the outcome of real research with real jurors not volunteers in mock juries.

The Henriques Report on Operation Midland.

The report takes aim at Sir Richard Henriques who in 2016 published an interim report on Operation Midland, the Metropolitan police inquiry that led to the fabricated account of Carl Beech. Two of Sir Richard’s conclusions included advising that the police should discontinue the policy of “believe the victim” because this led to an unbalanced approach to police inquiries. The second conclusion was that in the context of criminal proceedings it was inappropriate to call a complainant a victim at least until the fact of an offence had been confirmed by a conviction.  Until then the person remained a complainant.   Both conclusions are castigated in the report.  [p.25]

But the absurdity of the feminist position becomes apparent when there is brief reference in the report to the 2017 case of Liam Allen, the university student falsely accused of rape.   As readers may recall, the trial collapsed after a disc containing the download of the complainant’s phone was finally disclosed to the defence only after the trial was well underway.  The contents of the phone download established beyond any doubt that the complainant was lying in the account she had given to the jury.  The prosecution immediately dropped the case and Mr. Allen was acquitted.  Despite this, the report insists on referring to this liar as “the victim.”    Since Mr. Allen would likely have received a prison sentence in double figures if he had been convicted on this false and lying account, I suspect he might have other ideas about who the victim really was in this case.   It is hard to take seriously a report that doesn’t acknowledge such simple realities and it undermines any credibility the report can have on other equally contentious subjects. 

Questioning on sexual history – s.41 Youth Justice & Criminal Evidence Act 1999

Without referring at any point to any evidence that questioning complainants about their sexual history [SHE] is being abused the report calls for a ban on such cross-examination.    The terms of s.41 are set out in the report but the reader is told nothing more than that. In fact no sooner had this provision been introduced by Tony’s Blair’s Labour government in 1999 than the lawfulness of the provision was challenged in the case of R v A (No.2) in 2001.   The House of Lords held that the strict language of s.41 amounted to an almost complete ban on questioning about previous sexual history.   This was a particularly acute issue in that case where the defence wished to explain to the jury that the defendant and the complainant were not strangers but were in fact in a sexual relationship which many might think could be relevant to the issue of consent or belief in consent.  The House of Lords held that a literal interpretation of section 41 could mean the section breached the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights and therefore had to consider whether to issue a declaration that s.41 was incompatibility with the Convention.  In the event this was only avoided by a so-called “reading down” of the terms of s.41 so that when the section says “no question may be asked in cross-examination…about any sexual behaviour of the complainant” what this actually means is that such questions may be permitted if necessary to ensure a fair trial. 

Since the report claims that “The law on ‘SHE’ has long been queried by victims/survivors’ organisations” some reference to the views of the most senior court in the UK might have been considered worthwhile.   Certainly, a serious report might have been expected to deign to mention this significant gloss on the meaning of s.41 before launching into an attack on its use in court.  The absence from the report of any evidence that s.41 questioning is being abused may have something to do with the fact that such “research” as has previously been carried out by feminist groups had been systematically demolished in a report in 2018 by Professor Laura Hoyano from Oxford University.  This “research” included a hilariously inadequate study conducted by the current Victim’s Commissioner, Vera Baird Q.C..  Prof Hoyano’s report was commissioned by the Criminal Bar Association which represents criminal barristers in England & Wales who prosecute and defend in such cases.     Dr Hoyano interviewed a large number of criminal barristers directly involved in making and opposing applications under s.41.   Her research established that a substantial majority of barristers involved in these cases considered that the Act was working well.    The research showed that applications to introduce such evidence only occurred in about one case in every four and that such evidence, when not agreed, was only allowed to be heard in less than one case in five.   Since Prof Hoyano’s research casts a rather different light on the actual use of s.41, the complete absence of any reference to her report further undermines any claim that this part of the report should be taken seriously. 

Jury trials

Little about trial procedure escapes criticism, from the adversarial system itself, which is said to allow “ruthless cross-examination in the courtroom,” [p.57] which it is suggested “amounts to inhuman and degrading treatment” [p.78] and which “re-traumatises the victim”, to the standard of proof and even the fact that juries acquit.   

Indeed the report asserts that:

“The adversarial legal system is not working for rape and sexual abuse cases, and in recognition of the exceptional problems in evidencing and testing this crime, there needs to be a different and fairer whole-system approach.”  [p.76] In case of any ambiguity the report clarifies that “we recommend the judiciary in England and Wales consider how a more inquisitorial judicial approach might be adopted in rape trials.” [p.3]

No system of deciding guilty of criminal charges can claim to be indisputably better than any other. It is noticeable however that the suggestion from the feminists only applies to trials of rape and other sexual assaults and no claim is made that this should apply to any other offences.   It seems only this category of offences should be treated in this wholly exceptional way.    The Secret Barrister devoted two chapters in their first book of the same name to the issue of whether an inquisitorial system is to be preferred to an adversarial one and nothing I can say will improve on the arguments set out there.

Amongst other claims made in the report are that:

“The ordeal of cross-examinations for victims/ survivors have been widely accepted as problematic, with Codes of Conduct (Bar Council, 2004) in place that are supposed to prevent improper questioning. Despite this, damaging cross-examinations continue to take place, with academics arguing that cross-examination is used to humiliate and intimidate witnesses (Smith and Skinner, 2012).” [p.61]

The references alone suggest this particular claim is somewhat dated.  Whatever may have been the position back in 2004 is not remotely representative of the reality of cross-examination today.   In recent years all barristers undertaking cases involving sexual allegations have been required to undertake specific training in the cross-examination of vulnerable witnesses.    Quite apart from whether it is tactically sound to risk alienating the jury by adopting an overly aggressive cross-examination in most sex cases, few if any judges would allow it to continue for more than a very few questions.  

The report quotes one victim as saying that:

“being cross-examined was as traumatic as the rape, except with the added humiliation of a jury and a public gallery.” [.61]

So it seems that not only must the jury be abolished in these cases but they should also be held in private. Reading this report, it would be easy to forget that the complainant isn’t the only person with a direct interest in its outcome.     Contrary to the impression given by this report, the law and courts have bent over backwards in the last twenty years to accommodate the needs and provide a greater degree of comfort for complainants in sex cases.  It should not be forgotten however that the person being accused of a very serious crime faces many years in prison if convicted, along with loss of job prospects and a huge impact on every other aspect of their lives.    

But nowhere do the authors of this report reveal their true ambitions more clearly than in the following passage:

“Jury disbelief continues to be a major source of re-traumatization for victims/survivors, as it invalidates their lived truth and experience. The trauma of the rape itself, the re-trauma of the trial and the devastating acquittal is life altering, influencing day-to-day choices of victims/survivors and severely affecting their mental health.” [p.62]

You see the real problem with these cases is that juries acquit.   Elsewhere the report acknowledges that the problem with many sex cases is that for obvious reasons there are not usually any witnesses to such conduct and that therefore it is often one person’s word against another.  And here again the mantra ”believe the victim” shows how pernicious it is. If you really do believe that then any acquittal must be an affront to your belief that the victim must be telling the truth and since jury acquittals involve re-traumatising the “victim” then acquittals must also be abolished. 

No surprise then to find that the report ends by calling for a “Special Commission to examine the efficacy of juries in rape trials, because perceived or real jury prejudice acts as a driver of injustice at every stage.” [p.78]

No doubt the authors hope their report will be taken seriously.    I have not sought to comment on the sections relating to the police and CPS. However the section relating to criticism of the trial process does not deserve to be taken seriously.   Its claims about jury trials appear to be based on supposition and anecdote alone.   Many of the claims made in this section of the report are factually inaccurate or outdated and they collapse as soon as they are confronted by the product of professional research.   The conclusions reached in respect of the future of jury trials are deeply reactionary and one-sided.  They would lead to gross injustice, which is why I was surprised that the leading newspaper of the liberal left should think it appropriate to give the report its endorsement.    

One of the abiding arguments of this as with other previous reports is the low number of complaints that result in prosecution.  Indeed the report points out [p.4] that only two women in ten who have been raped report it.  Nothing is more guaranteed to deter genuine complainants from coming forward than to read reports full of factual inaccuracies and poorly supported arguments which do not paint an accurate picture of what happens when rape cases do go to trial. 

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[i] Crim L.R. [2020] 987, “The 21st century jury: contempt, bias and the impact of jury service.

Life Sentences for Murder Explained – updated 16.09.20

Sentencing has become far too complicated.    Sometimes judges have to refer to several different Acts of Parliament to check their powers. It is no wonder ordinary people who aren’t trained lawyers find sentences passed by a judge so confusing and hard to understand.  This article about life sentences will try to help people understand better.    In a future article I will address other forms of sentencing. 

Sentencing for Murder

The first bit of this is the easy bit. The sentence fixed by law for anyone convicted of murder is life.   No other sentence is available.

The next bit is more complicated because the judge has to decide what is the minimum term of imprisonment that the defendant will have to serve before they can even be considered for release on parole.

There are five starting points.   For those aged under 18 at the date of the offence [the important date to remember] the starting point is 12 years.  For those aged over 18 the starting points are 30 years, 25 years and 15 years.  For those aged over 21 there is an additional starting point which is the whole life order. 

It is important to bear in mind therefore that the relevant date for determining age is the date the offence was committed and not the date of sentence which will always be later. 

Whole life

To be eligible for such an order a person  has to be over 21 years of age at the date of the offence. If such an order is made the person will never be released except possibly on compassionate grounds if they are nearing death. 

Cases that would normally involve a starting point of whole life include:

• the murder of two or more persons, where each murder involves any of the following, (i)a substantial degree of premeditation or planning, (ii) the abduction of the victim, or (iii) sexual or sadistic conduct;

• the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

• the murder of a police officer or prison officer in the course of his or her duty,

• a murder done for the purpose of advancing a political, religious, racial or ideological cause, or 

• a murder by an offender previously convicted of murder

It can therefore be seen immediately that if for example the killers of PC Harper had been convicted of murder and had been over 21 at the date of the offence, they would have been eligible for a whole life order.  There is no need for any petitions on this point. It is already the law.  The fact the jury acquitted them of murder and convicted them of the lesser offence of manslaughter is obviously very important.

30 years

Cases that do not meet the criteria for a whole life order would normally attract a 30 year starting point. These include

• a murder involving the use of a firearm or explosive,

• a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),

• a murder intended to obstruct or interfere with the course of justice,

• a murder involving sexual or sadistic conduct,                

• the murder of two or more persons,         

• a murder that is racially or religiously aggravated or aggravated by sexual orientation, disability or transgender identity, or

• a murder which would, if over 21, have attracted a whole life starting point, committed by an offender who was aged under 21 when he committed the offence.

25 years

This category was introduced by a change in the law in 2010.  It applies to someone over 18 at the date of the offence if the offender took a knife or other weapon to the scene intending to—

• commit any offence, or

• have it available to use as a weapon,

• and used that knife or other weapon in committing the murder.

15 years

This starting point applies to any murder not in the above category

12 years

This starting point only applies to a murder committed by someone under 18 at the time. 

Deciding the minimum term

As their name suggests, starting points are just that.  The final sentence depends on a range of other issues, principally the features of the case that aggravate the offence and the mitigating factors that may reduce the final sentence.   The final sentence may occasionally end up at or below the starting point. Far more often the final sentence will be well above the minimum term.

Factors that aggravate the offence are typically whether it was premeditated, the victim was particularly vulnerable by reason of e.g. age or disability, the suffering inflicted on the victim before death and whether the offence involved an abuse of a position of trust.

Features of a case that might provide mitigation include the age of the defendant, whether they were reacting to being provoked by the victim, whether they had been acting in self-defence even if that did not amount to a defence or whether in killing they lacked an intent actually to kill.

The minimum term that the judge decides means exactly what it says.   Unlike any other sentence there can be no discount from the minimum term set for murder for an adult[i].   The fact it is a life sentence means that it would potentially be entirely lawful for the Secretary of State to keep that person in prison for the rest of their lives.   

Seeking release on parole is a lengthy and complex process and frequently applications for release are refused. As a result, many prisoners serve years beyond their minimum terms before being released.

And, if and when they finally released, a life sentenced person remains on licence of the rest of their lives. They can therefore lawfully be recalled to prison to continue serving their sentence if the probation service supervising them have concerns about their behaviour. This need not involve the commission of a further offence. 

Other Life sentences A number of serious offences carry a maximum sentence of life imprisonment.  These included serious assaults like causing grievous bodily harm, rape and robbery.  If a life sentence is imposed there are no set starting points as with murder but the judge again has to set the minimum  term.  The judge will start by deciding what the appropriate sentence would have been if he was not going to imposed a life sentence.  The judge would then take half that sentence as the correct minimum term. This reflects the fact that if a determinate sentence [one expressed as a term of years] had been imposed the offender would be entitled to be released after serving half that sentence.  However, since April 2020 the law in this respect has changed again.   The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 means that anyone over 18 at the date of the offence, convicted of a serious violent or sexual offence will in future have to serve two-thirds of a determinate sentence that is at least seven years long rather than half as applies to those sentenced before April this year.    This in turn will presumably have the effect of increasing the minimum term of these life sentences.

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[i] The position is different for those aged under 18 at the date of the sentence.  Such offenders are entitled to seek a review of their minimum term at the halfway stage of that term.  The case is referred to a High Court judge.   There are several criteria that might apply although the most likely to be engaged is that the detained person has made exceptional progress whilst in custody. In February 2020 the murderer of Sophie Lancaster who was 16 at the date of the murder and who received a minimum term of 15.5 years in 2008 was granted a one year reduction in the minimum term on this basis. 

Prison sentences for offences less than murder explained

As I said in my last blog sentencing is unnecessarily complicated.  When the judge announces a sentence the first thing everyone involved in the case wants to know is what does the sentence mean? How long will he serve? Will he get out earlier than the judge has said?  If he gets in more trouble can he be recalled? What part does the Parole Board play in all this?

 

In my last blog about life sentences here I explained that a life sentence may be imposed not just for murder but for a number of other serious offences.    In this blog I will try to explain the general principles that apply where sentences of imprisonment other than a life sentence are imposed.    In order to keep this article accessible to non-lawyers I am not going to address complex issues around consecutive sentences or where two different types of sentence are combined.

 

Determinate Sentences, sometimes called fixed term sentences

 

Before 1^st April  2020

 

This is the most common type of sentence of imprisonment. These are the ones where the judge says “Stand up Smith.  You will go to prison for fourteen years.”  They are called “determinate” because unlike life sentences where the release date is unknown it is, or should be, easy to work out when someone given a determinate sentence will be released.

 

For anyone sentenced in this way before 1^st April 2020 the answer to the question about how long they will serve is very simple.   Someone sentenced to a determinate sentence will be automatically released after serving half of the term of imprisonment announced.   The same applies if the person is sentenced for two offences at the same time.  If the judge says the sentences are concurrent, i.e. they run together, the prisoner will be released after serving half of whichever is the longer sentence. So, if Mr. Smith is sentenced to six years for one offence and four years for another and the judge orders them to be served concurrently, Mr. Smith will automatically be released after serving half of the longer of the sentences, here the sentence of six years and so will be released after three years.

 

In such cases the Parole Board is not involved in determining release.  In the first example above where Mr. Smith got fourteen years, he would be released on licence after serving seven years in prison.    The licence continues for the rest of the original term, in our example another seven years.   During that time Mr. Smith will be supervised by the probation service. He can be recalled to prison to continue serving his sentence if he breaches the terms of his licence, such as contacting the victims in his case.  He is also likely to be recalled to prison if he commits a further offence before the end of his licence period.

 

Some people complain that prisoners are released after serving only half their sentence.  They argue that prisoners should serve every day of the sentence the judge announced in court.  That is a valid argument.  But quite apart from the fact that early release frees up badly needed space in our already overcrowded prisons, releasing someone early puts the onus firmly on them. Behave and you can get on with your life.  Screw up and you go back to prison.

 

After 1^st April 2020

 

So far so good then and I hope you have been able to follow what I have said.  However, for those sentenced after 1^st April the position is different.

 

Anyone sentenced to imprisonment for a fixed term of seven years or more after 1^st April 2020 for many of the most common violent and sexual offences as well as a number of other serious offences will now have to serve two-thirds of their sentence before being released.   Such prisoners will however still be released automatically at the two-thirds stage and will not need a Parole Board hearing.

 

From 26^th February 2020 those already serving determinate sentences for terrorism offences will now have to serve two-thirds of their sentences and then only be released if the Parole Board are satisfied it is safe to release them.

 

Extended determinate sentences

 

This type of sentence applies to someone over 18 at the date of conviction where the judge considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further serious offences [often referred to as future dangerousness] but the judge doesn’t consider the offence merits a life sentence.   The judge must however consider that the offences would have merited at least four years imprisonment.

 

In addition to deciding the appropriate length of time the person must serve in prison [the custodial term] the judge must order that an extended period on licence is imposed, during which the person is subject to recall in the event they breach the terms of their licence. This can be up to five years for certain violent offences and up to eight years to certain sexual or terrorist offences.    The effect of this is therefore that even once released the offender remains subject to a longer period on licence and therefore remains at risk of recall.

 

Release from extended sentences

 

The rules relating to release from extended sentences changed in April 2015 and as a result there may still be a few people subject to a pre-April 2015 extended sentence who are eligible for automatic release at the two-thirds point of the custodial part of their sentence.   But we will concentrate on those who have received such a sentence at any time after April 2015.

 

Such prisoners now have to serve two-thirds of the custodial term. Even then they are not entitled to automatic release. Their case will be referred to the Parole Board for a decision as to whether it is safe to release them. If not, they must remain in prison. They can apply again annually to the Parole Board and at worst are entitled to be released at the end of the custodial term of the sentence.  In this way such a sentence still has a fixed end date beyond which the person cannot be detained.

 

The key purpose of these sentences is twofold.  First is to keep someone who is regarded as dangerous in prison longer than they would otherwise have had to serve. The second is to ensure that after release they are subject to a longer period on licence.  Let me try to illustrate licence periods.

 

Mr. Jones is sentenced to an extended determinate sentence of nine years, with six years as the custodial term and a three year extended licence.  After four years [two-thirds of the custodial term] he can apply for release. If he gets it, he is then on licence for the final two years of the custodial term plus the three years extended licence.  If he isn’t released immediately but is then successful on his next application to the Parole board he will be on licence for the rest of the custodial term as well as the extended licence.    He can be recalled, to continue serving the sentence at any time before the custodial term expires.  But whenever he is finally released, he will still be on licence for the three years the judge ordered.

 

Prison sentences under four years

 

Whatever your views on the merits of prison as a means of punishment there is a substantial element of agreement that short sentences achieve little if anything beyond shock value and a period of incarceration.  At the same time however, even short sentences can result in the loss of employment and the loss of a home and both of those are generally regarded as key elements in ensuring the stability of anyone’s life.

 

As a result, sentences under four years are treated differently.  First release is automatic from any such sentence and the Parole Board is not involved.  So someone sentenced to say 3 years and 4 months will be released after serving half, namely twenty months.   Anyone sentenced to more than twelve months will be released on licence.

 

In addition, however such persons may be eligible for what is known as Home Detention Curfew, or HDC.   This is perhaps more commonly known as release on tag, since the person will be subject to electronic monitoring to ensure they comply with any licence conditions.     There are a number of reasons why someone may not be eligible for HDC but it does apply to many prisoners.  The maximum period of HDC available is three months for someone sentenced to a term of under twelve months and four and a half months for anyone sentenced to between twelve months and under four years.

 

I hope this has proved of some help to those trying to figure out what a sentence that a judge has just announced actually means in practice.   Like I said at the start it is complicated.   I can’t cover every type of case that comes before the courts without making this article far too long and probably incomprehensible.   There are many cases where some of what I have said may need qualification.    If you are directly involved then you will need to check with the lawyers in the case, either CPS if you have been a victim of an offence, or the defence barrister or solicitor.

The Hillsborough Inquests – The Jury Speaks Truth to Power

When we first met the jury panel on 31^st March 2014 no one expected that by the end of April 2016 we would still be going.  Even at the start of the year I had thought it would all be over by the end of February and on that basis had agreed to do a trial in Oxford that was due to start at the beginning of April.  So by the time the jury finally retired on 6^th April I was no longer attending the Inquests.    Towards the end of that month we got the word that the Coroner was going to give the jury the majority direction, that is tell them that they no longer needed to be unanimous in their verdicts so long as a minimum of seven of the remaining nine members agreed to the verdicts.    So I travelled north again and back to Warrington.  Shortly after the Coroner had given jury the majority direction we were informed that they had reached verdicts and that these would be delivered the following morning, 26^th April 2016.  That would be day 319 of the Inquests, the longest case with a jury in England and Wales ever.

26^th April 2016 will forever live in the memories of Liverpool fans, the families of the 96 who died in the disaster and their friends who had survived and then lived with the additional horror of being blamed for the deaths of their friends and family members.  By this time I had been in practice as a barrister for nearly forty years.  I thought I had seen enough things in court not to be surprised by very much.  But then I hadn’t ever done a case quite like this one before.

Just after 11.05am the jury filed into a packed court full of eager anticipation.  The Coroner Sir John Goldring asked the forewoman if she would confirm the verdicts that he was about to read through with her.  The first one was a nice easy opener. Not much doubt the way this one was going to go.

THE CORONER: “Question 1: Basic facts of the disaster.

“Do you agree with the following statement which is intended to summarise the basic facts of the disaster:

“‘Ninety-six people died as a result of the disaster at Hillsborough Stadium on 15 April 1989 due to crushing in the central pens of the Leppings Lane terrace, following the admission of a large number of supporters to the stadium through exit gates’.”

Was your answer, madam, “yes”?

FOREWOMAN: It was.

 

Questions 2 to 5 dealt with the police planning for the match, policing on the day and the failure of order the closure of the gate into the central tunnel.

THE CORONER: “Question 2: Police planning for the semi-final match”.

Question: “Was there any error or omission in police planning and preparation for the semi-final match on 15 April 1989 which caused or contributed to the dangerous situation that developed on the day of the match?”

Was your answer, madam, “yes”?

FOREWOMAN: It was.

THE CORONER: “Did the jury give the following explanation:

“The jury feel that there were major omissions in the 1989 operational order, including: specific instructions for managing the crowds outside the Leppings Lane turnstiles; specific instructions as to how the pens were to be filled and monitored; specific instructions as to who would be responsible for the monitoring of the pens.”

FOREWOMAN: That’s correct.

 

THE CORONER: “Question 3: Policing of the match and the situation at the turnstiles”.

Question: “Was there any error or omission in policing on the day of the match which caused or contributed to a dangerous situation developing at the Leppings Lane turnstiles?”  Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Did the jury give the following explanation:

“Police response to the increasing crowds at Leppings Lane was slow and uncoordinated. The road closure and sweep of fans exacerbated the situation. No filter cordons were placed in Leppings Lane. No contingency plans were made for the sudden arrival of a large number of fans. Attempts to close the perimeter gates were made too late.”

FOREWOMAN: That’s correct.

 

THE CORONER: “Question 4: Policing of the match and the crush on the terrace.

“Was there any error or omission by commanding officers which caused or contributed to the crush on the terrace?” Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER:  Have the jury given the following explanation:

“Commanding officers should have ordered the closure of the central tunnel before the opening of gate C was requested, as pens 3 and 4 were full. Commanding officers should have requested the number of fans still to enter the stadium after 2.30 pm. Commanding officers failed to recognise that pens 3 and 4 were at capacity before gate C was opened. Commanding officers failed to order the closure of the tunnel as gate C was opened.”

FOREWOMAN: That’s correct.

 

THE CORONER: Question 5: The opening of the gates.

“When the order was given to open the exit gates at the Leppings Lane end of the stadium, was there any error or omission by the commanding officers in the control box which caused or contributed to the crush on the terrace?” Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Have the jury given the following explanation:

“Commanding officers should have ordered the closure of the central tunnel before the opening of gate C was requested, as pens 3 and 4 were full. Commanding officers should have requested the number of fans still to enter the stadium after 2.30 pm. Commanding officer failed to recognise that pens 3 and 4 were at capacity before gate C was opened. Commanding officers failed to order the closure of the tunnel as gate C was opened.”

FOREWOMAN: That’s correct.

 

Welcome as these verdicts no doubt were to those massed in court on the 26^th April there must have been a ring of familiarity about them to many. Way back in August 1989 Lord Taylor had concluded that, “although there were other causes, the main reason for the disaster was the failure of police control.”  [Interim report para 278.]

 

As for the failure to order the closure of the gate into the tunnel, this had famously been described by Lord Taylor as “a blunder of the first magnitude”.  [Paragraph 231.]  So far then the verdicts, whilst promising for the families actually told them no more than Lord Taylor had found twenty-seven years earlier.

 

Everyone in that courtroom knew however that Question 6 and the jury’s answer would determine the outcome of these Inquests and the way they would forever be perceived. If there was finally to be a measure of justice for the dead and their bereaved families and friends it would be the determination that the deceased had not died as the result of some sort of accident as the 1991 Inquests had absurdly concluded but as the result of unlawful killing.   I had sat thought all six days of David Duckenfield’s evidence in 2015 and in my mind there was no doubt that he had admitted all the elements of unlawful killing in the course of that evidence, including memorably in answers given to his own barrister.

 

But even so we knew getting the jury to agree this conclusion was a tall order.  Unlike the other questions which were all decided on the balance of probabilities, the jury had to be sure, as in a criminal trial, before they could return this conclusion.   It also required the jury to concentrate solely on the failings of the match commander David Duckenfield.  However useless the jury concluded the other senior officers had been that afternoon, none of that was relevant to the question of unlawful killing.     We knew in advance that the jury had not reached a unanimous decision on this question.   Until the moment the forewoman answered I thought we might not get this conclusion as I thought the jury might have felt it was going too far to effectively blame one man for what was on any view a catastrophic failure by many senior police officers.

 

THE CORONER: Question 6: Determination on the unlawful killing issue.

“Are you satisfied, so that you are sure, that those who died in the disaster were unlawfully killed?”

Was your answer “yes”?

FOREWOMAN: It was.

 

When the forewoman confirmed that the jury were sure that the 96 had been unlawfully killed the families in the courtroom broke into excited shouts of joy and relief.  For many of the families this was the holy grail, confirmation that the most senior office on duty at Hillsborough had failed in his duty so grossly that it amounted to criminal behaviour.   Finally, it seemed there might not only be some justice for the 96 but even some accountability as well.

 

But in that moment of euphoria we knew there might yet be a sting in the tail.  The next question asked whether the supporters had contributed in any way to the dangerous build-up outside the ground.  This had been the focus of the whole case of the police teams, that it the disaster all the fault of the fans who were variously drunk, late or didn’t have tickets and not the police.   In order to try to counter this attack we had played the jury over and over the CCTV footage showing the build-up and behaviour of the crowd outside Leppings Lane from about 2pm onwards.  The logic of the question was of course that those who died, who were all still alive when gate C was opened at 14.52 and many of whom only entered the ground through that gate, had caused their own deaths and that their friends, brothers and sisters who did not die were in fact responsible for their deaths.

 

As many inside the court would have appreciated at the time this was the courtroom equivalent of that moment right at the end of the 2005 Champions League semi-final second leg at Anfield when Eider Gudjohnsen had the chance to win the game for Chelsea.  Liverpool were a goal up but with away goals counting double in the event of a draw if Chelsea had scored then it would have been them rather than Liverpool who progressed to the final in Istanbul.  Suddenly that progress was in the balance.  The ball was floated into the Liverpool penalty area. It was met by a Chelsea player and headed across the box.  Eventually it fell to Gudjohnsen on the edge of the six-yard box.    Gudjohnsen’s shot arrowed across the face of the Liverpool goal from a narrow angle and in the crowded penalty area with three Liverpool players rushing back to try to clear the ball from so close to the line and with Didier Drogba intent on attacking the ball, anything might have happened.  I have watched the replay of that shot a hundred times and each time I am sure the ball will end up in the back of the net, simply because it seems impossible that it could travel across the six-yard box and not get a touch off any player.   How the ball managed not to take a touch of any kind, which would surely have seen it fly into the Liverpool net, remains a mystery of science and football.    Now eleven years on from that famous night, and in very different circumstances, the same level of tension would have coursed through the veins of many of those in court.

 

THE CORONER: Question 7: “Was there any behaviour on the part of football supporters which caused or contributed to the dangerous situation at the Leppings Lane turnstiles?” Was your answer “no”.

FOREWOMAN: It was.

 

THE CORONER: “Was there any behaviour on the part of football supporters which may have caused or contributed to the dangerous situation at the Leppings Lane turnstiles?”

Was your answer “no”?

FOREWOMAN: It was.

 

When the forewoman made it clear that the jury had unanimously rejected this disgraceful slur by the police the courtroom erupted into wild cheering.  Finally, the fans had been exonerated and all the calumnies that had been heaped on the Liverpool fans over the years had been shown to be lies.

 

Many of those in court that day will tell you that they were so overcome by the emotion of the moment that they neither heard nor frankly much cared about the remainder of the verdicts.  They were however not without significance. Question 8 highlighted the failures of Sheffield Wednesday FC whose ground Hillsborough was, in respect of the crush barriers at the Leppings Lane terraces, the lack of dedicated turnstiles or indeed sufficient turnstiles at all that day and the useless signage inside the ground to assist spectators.

 

THE CORONER: Question 8: Defects in Hillsborough Stadium.

“Were there any features of the design, construction and layout of the stadium which you consider were dangerous or defective and which caused or contributed to the disaster?”

Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Have the jury given the following explanation:

“Design and layout of the crush barriers in pens 3 and 4 were not fully compliant with the Green Guide.

The removal of barrier 144 and the partial removal of barrier 136 would have exacerbated the waterfall effect of pressure towards the front of the pens.  The lack of dedicated turnstiles for individual pens meant that capacities could not be monitored. There were too few turnstiles for a capacity crowd. Signage to the side pens was inadequate.”

 

Question 9 addressed the embarrassing failure by those responsible to make changes to the safety certificate which could have made a significant difference to the numbers allowed onto the terraces at all.

 

THE CORONER: Question 9: Licensing and oversight of Hillsborough Stadium.

“Was there any error or omission in the safety certification and oversight of Hillsborough Stadium that caused or contributed to the disaster?” Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Have you given the following explanation:

“The safety certificate was never amended to reflect the changes at the Leppings Lane end of the stadium. Therefore, capacity figures were never updated. The capacity figures for the Leppings Lane terraces were incorrectly calculated when the safety certificate was first issued. The safety certificate had not been reissued since 1986.  Is that correct?

FOREWOMAN: Yes, that’s correct.

 

 

Questions 10 and 11 involved further criticism of the football club and question 12 implicated the club’s then structural engineers Eastwood and Partners.

 

THE CORONER: Question 10:  Conduct of Sheffield Wednesday Football Club before the day of the match.

“Was there any error or omission by Sheffield Wednesday Football Club (and its staff) in the management of the stadium and/or preparation for the semi-final match on 15 April 1989 which caused or contributed to the dangerous situation that developed on the day of the match?”

Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Have the jury given the following explanation:

“The club did not approve the plans for dedicated turnstiles for each pen. The club did not agree any contingency plans with the police. There was inadequate signage and inaccurate, misleading information on the semi-final tickets.”

FOREWOMAN: That’s correct.

 

THE CORONER: Question 11: Conduct of Sheffield Wednesday football Club on the day of the match.

“Was there any error or omission by Sheffield Wednesday Football Club (and its staff) on 15 April 1989 which may have caused or contributed to the dangerous situation that developed at the Leppings Lane turnstiles and in the west terrace?”

Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Have the Jury given the following explanation:

“Club officials were aware of the huge numbers of fans still outside the Leppings Lane turnstiles at 2.40. They should have requested a delayed kick-off at this point.”  Is that correct?

FOREWOMAN: That’s correct.

 

THE CORONER: Question 12: Conduct of Eastwood & Partners

“Should Eastwood & Partners have done more to detect and advise on any unsafe or unsatisfactory features of Hillsborough Stadium which caused or contributed to the disaster?”

Was your answer “yes”?

FOREWOMAN: It was.

THE CORONER: Have the Jury given the following explanation:

“Eastwoods did not make their own calculations when they became consultants for Sheffield Wednesday Football Club. Therefore, the initial capacity figures and all subsequent calculations were incorrect. Eastwoods failed to recalculate capacity figures each time changes were made to the terraces.  Eastwoods failed to update the safety certificate after 1986. Eastwoods failed to recognise that the removal of barrier 144 and the partial removal of barrier 136 could result in a dangerous situation in the pens.”

FOREWOMAN: That’s correct.

 

And although they were the final verdicts, the answers to Questions 13 and 14 did not pass unnoticed either.  The answers reflect the fact that the jury had evidently taken a dim view of the frankly pathetic efforts of both the police and ambulance service to first of all realise a disaster was unfolding before their very eyes and secondly to take any effective action to relieve the crush and the suffering of those involved.  Two specific incidents come to my mind.  The first is Superintendent Greenwood, the most senior officer inside the ground apart from Duckenfield, wasting precious time by hanging off the Leppings Lane fence fully 5 minutes after the match had been halted, engaged in an action of the utmost futility, urging people to move back as if they had any chance to move at all in that deadly crush.  The second is of two hopeless South Yorkshire ambulance personnel who somehow managed to walk right along one side of the Leppings Lane end from corner flag to behind the goal, at the very time the match was called off and failed to notice a massive crush right in front of them before they walked across the penalty area and wandered nonchalantly back down the pitch away from the unfolding disaster.  So it was that precious time that might have resulted in a lower loss of life was frittered away.

 

THE CORONER: Question 13: Emergency response and the role of the south Yorkshire Police.

“After the crush in the west terrace had begun to develop, was there any error or omission by the police which caused or contributed to the loss of lives in the disaster?”

Was your answer “yes”?

FOREWOMAN: It was.

Have you given the following explanation:

“The police delayed calling a major incident, so the appropriate emergency responses were delayed. There was a lack of coordination, communication, command and control which delayed or prevented appropriate responses.”

FOREWOMAN: That’s correct.

 

 

THE CORONER: Finally, Question 14: Emergency response and the role of the South Yorkshire Metropolitan Ambulance service (SYMAS).

“After the crush in the west terrace had begun to develop, was there any error or omission by the ambulance service (SYMAS) which caused or contributed to the loss of lives in the disaster?”

Was your answer “yes”?

FOREWOMAN: It was.

Have you given the following explanation:

“SYMAS officers at the scene failed to ascertain the nature of the problem at Leppings Lane. The failure to recognise and call a major incident led to delays in responses to the emergency.”

FOREWOMAN: That’s correct.

 

In total it took just seventeen minutes between 11.05 and 11.22 for the jury to return conclusions fixing responsibility for the Hillsborough disaster firmly at the doors of the South Yorkshire Police, Sheffield Wednesday FC, Sheffield City Council, the Club’s engineers Eastwood & Partners, and so far as the woefully inadequate rescue effort was concerned South Yorkshire Metropolitan Ambulance Service as well as SYP. By the time the Coroner adjourned for the final time at 4.20pm we had seen all the family members in court give the jury a standing ovation, richly deserved after two whole years of listening to the evidence.

 

I thought it was important to write this article on the anniversary of the inquest verdicts because I am aware that some of the families have experienced very profound despair and unhappiness at the subsequent acquittal of David Duckenfield on charges of the manslaughter by gross negligence for those who died at Hillsborough.  There has also been inordinate delay in listing the final criminal trials arising from the disaster.  Some have even expressed the view that the acquittal has rendered the inquest verdicts pointless.

 

As a lawyer I suppose I can be a little more detached than those who experienced the disaster and the dreadful loss of life.  In writing this account therefore I hope to remind those in despair that their victory at the inquests was not pointless at all. It was not all a colossal waste of time.  Those 14 verdicts represent forever the complete and utter vindication of them and their extraordinary campaign for justice for the 96.   Their victory changed the official narrative of Hillsborough.  From now on the official record confirms that the disaster was the fault entirely of those charged with organising, protecting and policing the fans at that match. As the jury made clear the disaster was in no way caused or contributed to by the fans who attended.

 

That night Prime Minister David Cameron issued a statement in which he said:

“Today is a landmark moment in the quest for justice for the 96 Liverpool fans who died on that dreadful day in April 1989.

It is also a long overdue day – the bereaved families and survivors of the Hillsborough Disaster have had to wait 27 long years for the full facts of what happened. And it is only due to their tireless bravery in pursuing the truth that we arrived at this momentous verdict.

All families and survivors now have official confirmation of what they always knew was the case, that the Liverpool fans were utterly blameless in the disaster that unfolded at Hillsborough.”

The following day Home Secretary Theresa May MP made a lengthy statement in the House of Commons.  The speech can be read here.  It included the following:

 

“The conclusion of the inquests brings to an end an important step since the publication of the Hillsborough Independent Panel’s report [in 2012]. Thanks to that report and now the determinations of the inquests, we know the ​truth of what happened on that day at Hillsborough.”

 

“I want to end by saying this. For 27 years, the families and survivors of Hillsborough have fought for justice. They have faced hostility, opposition and obfuscation, and the authorities, which should have been trusted, have laid blame and tried to protect themselves, instead of acting in the public interest.

But the families have never faltered in their pursuit of the truth. Thanks to their actions, they have brought about a proper reinvestigation and a thorough re-evaluation of what happened at Hillsborough. That they have done so is extraordinary. I am sure the whole House will want to join me in paying tribute to their courage, determination and resolve. We should also remember those who have, sadly, passed away while still waiting for justice.”

 

So, 26^th April 2016, belongs to the family and friends of the 96 and to those who suffered in the crush but somehow survived only to find themselves the object of more than two decades of vilification.  At 14-0 the inquests represent a crushing victory for them all in the fight for justice and to ensure the world finally heard the truth about that dark day at Hillsborough.

Come on Mr Burton. An apology is the very least you owe Paul Blackburn

The assistant chief constable of the Cheshire police has confirmed that his force will not apologise to Paul Blackburn over his conviction in 1978 for attempted murder and attempted buggery[1].  Mr. Blackburn’s conviction was quashed by the Court of Appeal in 2005, two years after Mr. Blackburn has been released after serving 25 years in custody.  The prosecution at his trial relied principally on a confession the police claimed Mr. Blackburn had made. The conviction was quashed because the Court of Appeal had serious doubts about the reliability of those “confessions”.   Part of the apparent justification for the view of the Cheshire constabulary was that “this case was investigated more than 40 years ago, at a time when the procedures and rules around the questioning of suspects and the submission of evidence were very different to that of today.”

 

Mr. Blackburn was convicted a year or so after I had started practice at the criminal Bar.  For the first decade of my career it was commonplace for the police to rely in large part on alleged confessions made by suspects.  It was almost equally commonplace for defendants to dispute such confessions and frequently to claim that they had been fitted-up, words put into their mouths and confessions simply manufactured by officers who felt they could do that sort of thing and get away with it.  Such confidence on the part of the police was, at the time, not misplaced given that few, if any, judges were prepared to bring themselves to contemplate the very idea that police officers in their courts might be telling lies.  It wasn’t until the latter part of the 1980s, by which time the provisions in the Codes of Practice attached to the Police & Criminal Evidence Act 1984 had really state to bite, backed up by judgments of the Court of Appeal such as R v Samuel [1988]  that things started to shift. But all of that came too late for Mr. Blackburn.

 

One afternoon in June 1978 a nine-year old boy was attacked and seriously assaulted in Warrington by an older youth. Mr. Blackburn at the time was himself aged just 15.  When first questioned by police a week after the attack Mr. Blackburn gave the police a witness statement stating that he had been at home all afternoon on the day of the attack.  Nearly three weeks later he was interviewed again in the secure unit of the approved school where he was detained.  He had no member of his family or a solicitor present.  In a pattern that many of my colleagues who can remember those days will recognise, for the first hour and three-quarters he explained his movements on the day in a further witness statement but made no confession.  He was then interviewed under caution from 11.20am to 12.40pm, at which point he started to cry and said “Yes, it was me.”  Only at this stage did either of the experienced police offices, DCI White and DI Marsh, conducting the interrogation, think it appropriate to record what was said.  The police notes suggested that a series of open, non-leading questions were asked which produced answers giving details of the attack.  Between 1.25 pm and 1.50pm Mr. Blackburn wrote out a statement in his own hand admitting the offence.

 

At trial his counsel attempted to exclude the confessions. On a voir dire DI Marsh said in terms that Mr. Blackburn had written the confession statement himself “entirely with no interruption”.  Later in front of the jury he repeated that statement saying, “Paul wrote it himself without any interruption from anyone in the room – I was sat watching him write.”   It seems that the evidence of DCI White was to the same effect since the judge in summing-up told the jury “they then sat there and said nothing while Paul wrote it down for himself.”

 

No great surprise then that in those days, on that evidence Mr. Blackburn was convicted. He was sentenced to detention for life only emerging from custody in 2003.

 

By the time of his appeal in 2005 the prosecution conceded that the evidence of a linguistics expert meant that the claim of the police officers that the wording of the confession was all Mr. Blackburn’s was clearly nonsense.   Even under the rudimentary protection afforded by the so-called Judges’ Rules to those under interrogating, “prompting” a suspect as to what to include in a statement they made was prohibited.

 

That concession, properly made by prosecution counsel, was seen as hugely significant by the Court of Appeal since it called into question not merely the reliability of the written confession but also what the officers said about the alleged oral admission made before the written confession.  The Court of Appeal concluded that “we cannot escape the conclusion that the officers cannot have told the truth about the written confession.” From that conclusion it was a short step for the Court to say that this also “calls into question the reliability not only of the written confession but of the preceding oral admissions as well”.  As a result, the Court of Appeal concluded that Mr. Blackburn’s “admissions” had been wrongly admitted in evidence at his trial.  The remaining evidence was described by the Court as “circumstantial and of limited weight” and accordingly the appeal was allowed and the conviction was quashed.

 

Given the circumstances the response of the Cheshire police seems thoroughly inadequate and inappropriate. Showing an admirable ability to miss the point Mr. Burton the assistant chief constable relied upon the fact there had been “an independent inquiry” into the conduct of the officers involved in this case back in 1996, which surprise surprise concluded “that there was no evidence of any misconduct nor was there any evidence to pursue criminal proceedings against the officers concerned.” It seems the subsequent judgment of the Court of Appeal that Mr. White and Mr. Marsh committed perjury in their evidence in court counts for little in the view of the Cheshire police.    And his remark quoted at the start of this article that “this case was investigated more than 40 years ago, at a time when the procedures and rules around the questioning of suspects were very different to that of today” won’t do either.  A latter-day confession by a senior officer that in effect “that’s what the police did back in the bad old days” may be of historical interest but it hardly justifies the mealy-mouthed refusal to apologise to Mr. Blackburn.

 

Come on Mr. Burton.  Your officers fitted up a fifteen-year old boy, lied about it on oath, got an innocent man convicted of a dreadful offence and you aren’t prepared to apologise?     You are a public servant. Your force let the victim and public down as well as Mr. Blackburn.  Your force emerges with absolutely no credit from this dreadful case. The very least you could do is apologise.

[1] The Guardian, 13^th January 2020 “Police reject judge’s call to apologise over wrongful conviction”.  There is also a podcast about this case available on the Guardian website.

https://www.theguardian.com/news/audio/2020/jan/13/why-did-paul-blackburn-spend-25-years-jail-for-crime-didnt-commit

Criminal Trials? – Expect the Unexpected. Its all in a day’s work

These days when barristers go to court we never know what to expect – and that’s before our case starts.    In the course of the trial I am about to tell you about we had a day when we couldn’t sit because the judge was ill, lost several more days due to juror illness and one day the court was shut due to the complete failure of the heating system. We had days when in the middle of a cold winter we had to stop early because the court had overheated so much as to be intolerable. On other days the jury were in court in their coats and scarves and needed breaks so they could get their circulation working again.  This would have been outrageous if the case had been an allegation of shoplifting. But this was a murder trial.     Oh, the joys of working in the criminal justice system as it reaches the point of almost complete collapse.

 

But leaving all that aside for the moment, the dynamics of a criminal trial in an adversarial system more or less guarantee that every now and then something happens that really makes you sit up and take notice.   Let me explain.

 

My client was charged with murder. He was originally tried with two others also charged with murder and several more charged with assisting an offender.

 

Around the turn of the century he had worked as a doorman at a nightclub. Since some of the clientele were at the less desirable end of the spectrum of customers and there was a fear of serious violence the owner bought ballistic tests for the doormen.  My client reckoned he stopped working as a doorman about 2003.   The vest had been stored in a hallway cupboard of his home where it had lain undisturbed for many years.   In December last year when he was arrested for murder the vest was seized by the police.   It was relied on at trial as proof that he feared reprisals as a result of his involvement in the murder.

 

At the end of the prosecution case we made a submission of no case to answer. This was rejected by the judge and the defence case began. At the end of the first day of defence evidence the prosecution reviewed some of the cctv footage and disclosed some further footage that was not only entirely consistent with the evidence that had been given by D1 but also appeared to seriously undermine their case against my client.  So, I told the judge I wanted to renew my submission and he agreed to hear me.   After further legal argument the submission was allowed.

 

Until not many years ago that would have been the end of the case.  But then along came Tony Blair and David Blunkett.  By 2003 the mantra that New Labour was going to be “tough on crime and tough on the causes of crime” had mutated into something closer to “tough on those accused of crime.”   Their wretched Criminal Justice Act 2003 was packed full of provisions to help bump up conviction rates. One of these gave the prosecution the right to appeal such a ruling and nine days later we were in the Court of Appeal with me in the usually position of arguing that the judge’s ruling was impeccable and entirely justifiable.   Back in the late eighteenth century Sir William Blackstone wrote that English law thought it was better that ten guilty men should go free than that one innocent man should be condemned.    These days the Court of Appeal seem more inclined to the view that it is better that the occasional innocent man should suffer so that we can be sure we get all the bad guys, and anyway they really don’t like the idea of potential murderers going free.

 

No surprise then that the Court of Appeal ruled that the judge should not have allowed my submission, said the arguments were all ones that should have been left to the jury and ordered a retrial.  This was bad news for my client, made worse by the fact that he would now be tried alone since the trial of the other defendants had proceeded after the submission had been allowed.

 

So it was that in mid-November we started all over again.   On this occasion I sought to exclude the evidence of the finding of the ballistic vest on the basis that it was obvious from the evidence in the first trial that the vest was irrelevant to the issues the jury had to try and was potentially prejudicial without having sufficient probative value. The judge disagreed.

 

After several weeks of the prosecution case the time came when my client gave evidence.  He duly explained about acquiring the vest around 1999-2000 and confirmed that he stopped that line of work in about 2003.  Shortly after cross-examination began my client was asked by the prosecution to confirm the dates he had given about the acquisition of the vest.  “Look at the label” said the prosecutor as he played what he believed was his trump card.  Sure enough there was a label on the vest.  “Read out the date on the label.”   The label is from a ballistic shield and the date of manufacture is 2009.  “So you are lying about when you got this vest” says a now triumphant prosecutor as he moves in for the kill.  My client insists that label was not on the vest when it was taken by the police but by now it’s obvious to all in court that my client is really suffering.   He’s reeling from the blow that has been struck and he’s clearly finding it hard to answer questions in anything like a coherent fashion.

 

My tenacious and resourceful junior has already left court and by the time he returns its clear he has contacted both the manufacturers whose name was on the label as well as the distributors of the ballistic shields.    It quickly becomes apparent that something has gone badly wrong here.   The label clearly says it is from a ballistic shield and this isn’t a ballistic shield, it’s a ballistic vest.  The label also has the name of the model of the shield and it’s the name of the police force investigating this murder.  It turns out that the manufacturers always name their items after the police force that first came up with the idea for the particular item.

 

With my client still part-heard in his evidence, which means we are unable to speak to him to tell him of the inquiries we are making that might have helped put his mind at rest, two days are lost with the jury whilst we marshal the evidence to be called on this issue and the police make their own inquiries.  By the time the evidence on this topic has been completed in front of the jury a few things are clear.  The label is indeed from a shield such as is used when police force entry to premises. It was made to a specification give to the manufacturers by the same the police force prosecuting this case.  Fifty of the said shields had been delivered to that very police force in er … 2009, the date on the label. Ooh er!

 

The officer who had been asked to inspect the ballistics vest after it had been seized from my client just so happens to have been involved in the development and design of the shield from which the label evidently came.   He gives evidence that he examined the vest very closely and did not see the label. He also confirms that in the circumstances if he had seen it, it would have been of considerable interest not least because the label doesn’t belong on a vest.  The date on the label refers to the date of manufacture of a shield and not the vest. In fact, the label has nothing to do with the vest at all.  No explanation was forthcoming from the senior officer who first saw the label as to how it had got onto the vest whilst it has been in the custody of the police.  Tempting though it was to allege an attempt to fit-up my client I took the view that I didn’t need to go that far and its always a good idea to remember the jury may not agree with such an assessment.  In the circumstances it didn’t matter to the defence how this had occurred; we just enjoyed the obvious discomfort of the prosecution team.    At the conclusion of the trial the judge ordered an inquiry into how the label had got onto the vest.

 

The upshot of all this late drama is that what looked like a very good point for the prosecution and a very damaging blow to the defence only a few days earlier had now turned into a complete turkey for the prosecution who now had large amounts of egg on their faces.   I did consider briefly whether the negative impact of the original cross-examination of my client might have prejudiced the jury against him, and might therefore require us to seek to discharge the jury but it didn’t take much time for us to decide that this point had actually gone so disastrously wrong for the prosecution in front of the jury that we were quite happy to carry on with the same jury.  What if any impact any of this had on the jury we will never know.  Given the speed of my client’s acquittal, at little more than two hours including time for lunch, I imagine the jury had not had much faith in the prosecution case for some time already but who knows?

 

My client was aged 50. The two men convicted in the first trial of murder received life sentences with minimum terms of 31 and 32 years.  If convicted my client would inevitably have received a similarly lengthy minimum term.  Given his age this would have amounted to a death sentence. It is unlikely he would ever have emerged from prison alive.    As it is, he goes home to his family after a year in custody and will no doubt have one of the best Christmases of his life.

 

There is no better feeling for an advocate than winning a case and in this one we won the case twice!   But my joy is tempered by the thought that this could easily have ended very differently.  Whether the inquiry will reveal what happened I rather doubt.  But if this wasn’t a deliberate attempt to fit up the defendant it appears it involved a pretty monumental series of errors starting with the simple question of why an exhibit in a trial placed in a supposedly tamper proof bag after being seized could be anywhere near, much less have contact with, a ballistic shield.   As Private Eye might say, I think we should be told.

 

 

 

 

“Digital Strip Search” is a fallacy: Complainants should be told the truth about what may happen to digital data seized by the police

I would like to thank Laura Hoyano of Wadham College, Oxford for her helpful comments and suggestions on an earlier draft of this article.  All views expressed here are mine as is the responsibility for any errors.

 

The way in which the police investigate allegations of rape and other sexual assaults has attracted a lot of recent attention and there has been a good deal of coverage in the Guardian newspaper and its website.    It is an important subject.   Under the headline “Sexual abuse victims should not face a digital strip search” (Guardian 21 September 2019) the newspaper published an article by an anonymous author who describes themselves as “an independent sexual violence adviser”.   The author argues that the demands of the police to see the data recorded on a complainant’s phone or other electronic devices amounts to a digital strip search and is inappropriate and disproportionate.  The Guardian published two other articles here and here on the same subject in July of this year.

 

The number of reported cases of sexual assault that end up going to court has apparently fallen dramatically in recent years.    Neither the most recent Guardian article nor the previous ones has said anything about whether this is happening only in the field of sexual offences or whether, as  criminal solicitors across the country have been pointing out for several years now, this is in fact part of a much broader decline in cases of all sorts going to court.   None of this is surprising given the huge cuts in numbers and experience in both the police forces of England and Wales and the Crown Prosecution Service which has lost a third of its staff in recent years.

 

In respect of sexual offences there seem to be more people prepared to agitate on the subject than in respect of other serious offences such as robbery and assault including the Victims’ Commissioner who takes a special interest in those complaining about sexual offences.

 

There are a number of comments that this article, invites. Before moving on to the language in which the article is couched it is surprising to see an article of this type appearing in print from an author claiming anonymity.   No explanation is given as to why this is thought necessary although presumably the Guardian was persuaded of the need.   It does however give the impression that the author cannot speak freely.   This is unfortunate for someone described as an “independent” advisor who, one might think, should not have concerns about voicing their opinions on such matters.   It is doubly unfortunate given the importance of the matters in issue as well as the fact that a number of contentious propositions are advanced by the author that call for a response.

 

First is the steadfast refusal of authors such as this to use the correct terminology, amongst these being the repeated reference to the “victims” of rape.  Since we are talking here about criminal investigations leading potentially to criminal charges, trials and sentences, language matters.  In describing any other offence, the person complaining, say of an assault in a pub, would be referred to as the complainant.  As Sir Richard Henriques said in his report on the Operation Midland fiasco it is important that the complainant is thus called at least until there is a conviction by either a plea of guilty or the conviction of a jury. Otherwise the use of the term ‘victim’ is highly emotive and suggests that of course the complaint is a true one before a jury has decided if it is.    The presumption that an accused person is innocent until their guilt has been proved is central to criminal justice in the UK and no dilution of this concept can be acceptable.  Talking in terms that assume the allegation is proved in advance is incompatible with the presumption of innocence.

 

Similarly, the author refers to the “survivors of rape”.  In many ways this is a mirror of the term “victim of rape”.  But the word survivor means nothing until it is contrasted with its opposite.  It is appropriate to talk about the survivors of a plane or car crash or other potentially lethal experience where others have died and are therefore not survivors.  But terrible offence though rape is it does not normally involve the death of the person attacked.   So, the use of the word “survivor” is not only inappropriate but its use seems to be intended to raise the temperature of any debate and make it seem as if not only has there been a rape, but this person was lucky to escape with their life.

 

In contrast to other articles on this topic this article does make brief reference to “the collapse of a small number of high-profile rape trials due to failures in disclosure of digital evidence” as the apparent precursor to the current demand by the police for access to digital data on a complainant’s phone.  This is presumably a reference to the series of rape cases that collapsed in late 2017 and early 2018.  But in fact, those cases were not at all high-profile. They were in truth simply examples of the many rape cases that are going through the courts at any one time. Where they gained a degree of notoriety was in respect of the significant, but sadly, by no means atypical, failures of disclosure by the prosecution, primarily relating to mobile phone data.  Nowhere does the author of this article acknowledge that those cases illustrated the very real and urgent need to ensure a much greater inquiry by the police into this very area.  One of those cases, the most well-known, involved a young man of good character called Liam Allan.  The digital material on the phone of the complainant in his case showed that she had been in contact with friends of hers after the alleged rapes and said things that completely undermined the account she had given to the police.

 

But as is very common in recent articles on this and related topics there is no recognition that disclosure failures are extremely serious and have become rather more frequent and in the cases that were highlighted in late 2017 and early 2018 innocent young men could easily have been wrongly convicted and had their lives ruined by receiving lengthy prison sentences as well as the life-long stigma that goes with being a sex offender.  It is a pity that there is no such recognition because the debate about the extent to which the police should be requiring access to digital material arises in many modern sexual offence cases.    Of course, such investigations have to be proportionate and it may well be that in some cases the police response has not met that standard.  A blanket policy of requiring access to all digital material held by any complainant is unlikely to be upheld by the courts.

 

However, it is a fact that in the majority of sexual assaults the complainant knows their alleged attacker so an inquiry into the digital material held may have obvious relevance to the police investigation.  Nor should it be overlooked that it is not just the complainant’s mobile phone or laptop that will be taken for examination by the police. They will also be keen to see what a similar examination of the suspect’s phone or laptop might reveal about the alleged offence.    If the police are doing their job properly and not simply blindly following, what despite the trenchant criticisms made in the Henriques report remains, the official policy of “believe the victim”[i]they will have to consider and pursue all reasonable lines of inquiry including those that point away from the alleged offender[ii].

 

It may be very inconvenient to some but those accused of crime are entitled to deny the allegation. This may take the form of denying the offence took place at all or that the complainant has got the wrong person. Alternatively, it may be argued that consent was properly given or that the accused person honestly and reasonably believed that consent was properly given.   Any of these situations are likely to require the police to consider investigating the digital material available on the complainant’s devices either because this may help to prove the offence or because it may assist the defence.  If it genuinely does assist an accused person then obviously that is very important and I am sure no advocate for those complaining of sexual assault would argue to the contrary.   This should not involve making the complainant feel they are being investigated.   It is simply the police doing their job of properly investigating the case.

 

And this brings me to the vexed issue of disclosure and what is likely to happen to it in any court case.  For the purposes of this article we need not dwell long on the background to the sorry saga of disclosure failures that both preceded and followed the Prosecution of Offences Act of as long ago as 1985 which first put disclosure on a statutory basis.  Let us agree for now that this has been a fertile source of some of the most egregious miscarriages of justice in the not so proud history of the English criminal system.

 

It is important to note that the rules on disclosure apply only to what is known as “unused material”.  That is material in the possession of the police that they do not rely on as part of the prosecution case.   So if, for example, a search of a complainant’s mobile phone produces evidence that supports the prosecution case this becomes “used material” and is not unused at all.

 

The relevance to the topic of sexual offences is that most articles about what are described in deliberately tendentious language as “digital strip searches” give the impression that once handed over to the police the material will like as not end up in the hands of some wily defence advocate who will use it to tear the complainant apart in court.    As articles such as the one under consideration published in the Guardian may well be read by those who are contemplating making a complaint about a sexual assault it is important that they are not scared off by misleading information about what might happen to any material found by the police on a phone or laptop.   The reality of the situation rather than the fiction ought to provide some comfort for such complainants.

 

First, the CPS is under a duty NOT to disclose any material unless it meets the test for disclosure. That means that unless it undermines the prosecution case [e.g. it suggests the offence did not take place] or it assists the defence case, [where for example a complainant has told a third party they consented to sex] it will not be disclosed. If the defence dispute this, they can make an application to a court but a judge will then decide whether the material should in fact be disclosed.  Unless the material is fairly obviously disclosable it will be a tall order for the defence to persuade a judge that the material should be disclosed at all.

 

But even if it is disclosed that does not mean it will automatically be used to cross-examine the complainant. The defence have further hurdles to get over first.  If the material is said to amount to evidence of bad character, which not only includes any previous convictions a complainant may have but would also include any other “reprehensible behaviour” such as lying about some important matter in the past, that cannot be raised by the defence without a further application being made to the trial judge to admit it. In that event the judge would need to be satisfied that the evidence was relevant to an issue in the case[iii]. Only if the judge agrees that it is relevant and meets the test for admissibility, would the evidence be allowed to be put in cross-examination.

 

Finally, if the defence are aware of some previous sexual behaviour of the complainant that is said to be relevant, there is an absolute ban on such material being adduced unless a judge agrees that it should be, not just because the evidence is relevant but because refusing to allow the evidence to be adduced risks the defendant not getting the fair trial to which they are entitled.    This is often referred to as a section 41 application because it applies to s.41 of the Youth Justice and Criminal Evidence Act 1998.

 

So when articles refer to such material being “handed over to the defence” or “used as a legitimate line of defence” it is important to remember that that is a gross oversimplification of a rather more complex procedure as I have tried to explain.  Furthermore, it is inappropriate to refer to the use by a defence barrister of such material as may have been disclosed as being likely to result in “victim violation, vilification and humiliation.”   If the defence barrister is using it, it is because the material is relevant and important to ensure the trial is fair.  Even when permission has been given to use the material judges are these days far more careful to ensure that questioning is conducted in appropriate language and no judge these days would allow the material to be used in the way alleged.

 

Sex cases are distressing. If there has been an assault it is a hard thing to have to give evidence about.  This is one area in which there has been huge progress in recent years.  That is why these days complainants usually give their evidence without ever coming into court unless they specifically request to do so. Their evidence in support of the case is recorded on a DVD and played to the jury in the absence of the complainant.  In the near future courts will become used to seeing the cross-examination also recorded in advance of the trial thus meaning the complainant may not need to attend court at all if they do not wish to do so.   If they do have to attend for cross-examination, they are entitled to be questioned over a tv link from another room in the court building.  These changes have been made in an attempt to make the experience of giving evidence a great deal less stressful than in the past.  However, trials are not just about the complainant.  Those accused are entitled to assert their innocence and have the case proved against them.  They are entitled to expect that the allegation will be challenged robustly by their defence counsel and if necessary, the truthfulness of the complainant must be raised and challenged.  If there is relevant evidence available from the mountain of digital material that anyone’s phone or laptop now contains it is only right and proper that it should be heard.   Advocates for those who complain about sexual assault need to remember there are frequently two sides to any story.

 

There remains much that the police and CPS need to do to improve practice but, in many cases, a fair and proportionate investigation of a complaint of a sexual offence will necessarily involve considering the digital data held by the complainant in the case.   For the reasons I have explained this may assist the prosecution to prove its case. If in fact it is likely to help the defence the requirement to provide a fair trial means the evidence must be disclosed.    But even then it is important that complainants are made aware that none of this material will be used against them in court without careful scrutiny by the trial judge and only if it deemed relevant and necessary to ensure a fair trial.

 

 

 

[i] The College of Policing announced a review of the policy in April 2018. In general, it recommends retaining the term “victim” – see para 4.7. The report does however give a vague nod in the direction of accepting that the term might have to be modified in certain circumstances. Perhaps they have court proceedings in mind.  New guidance is expected to be published shortly.

[ii] Code of Practice under Criminal Procedure and Investigations Act 1996 para.3.5

[iii] The hurdle for admissibility is a high one.  The evidence must not only have “substantial probative value” but it must also relate to “a matter which is of substantial importance in the context of the case as a whole.” See s.100 (1) (b) Criminal Justice Act 2003

The Miner and the Police Officer – why a photograph matters

 

On arrival at Garden Court North Chambers visitors can see one of the iconic images from the Great Miners’ Strike of 1984-5. It is an image that has been seen around the globe, a brilliant photograph by Don McPhee. It depicts a miner, George Brealey from Yorkshire Main colliery, with prominent sideburns wearing a toy police helmet talking to a police officer in the massed ranks of police officers at the Orgreave coking plant near Sheffield in June 1984. Mr Brealey, affectionately known to his friends as “Geordie” was also well known as someone who liked a laugh and as a former soldier he had pretended to be reviewing the police officers on parade. Sadly Mr Brealey died in 1997.

 

As a brand new barrister I cut my teeth on public order cases. In the autumn of 1977 I was instructed in a large number of cases that arose from the determined efforts of local residents and anti-racists to halt a march by the fascist National Front through the streets if Lewisham the previous summer. Doing a series of trials for threatening behaviour, obstructing and assaulting police officers was the best advocacy training a new barrister could ask for.

 

When the miners’ strike broke out in early 1984 I was one of a number of barristers organised by the Haldane Society to spend a week at a time in Ollerton in Nottinghamshire.   Large numbers of miners had been made subject to highly restrictive bail conditions some of which made it all but impossible for them to continue to live in their own homes. I saw for myself the reality of what was in effect a police occupation of Ollerton as well as a number of other pit villages. On one occasion when returning with my client and a mate of his from the Magistrates’ Court in Worksop we were stopped at a police roadblock and required to explain and justify our presence in the area.

 

Since those days I have represented scores of demonstrators or pickets on strike from the miner’s strike, to the fight to prevent the loss of job of print jobs at Warrington a few years later as well as Greenpeace activists who blocked the outflow pipe of a chemical plant discharging unlawfully into the Irish Sea and others who bolted themselves to the road to prevent the movement of nuclear waste.   In more recent times barristers in the crime team at Garden Court North have been involved in many public order cases particularly in the north-west of England including currently assisting dozens of those arrested in anti-fracking protests.

 

We decided that it would be fitting for a Chambers like GCN with our ethos of support for the individual facing the power of the state to have a copy of the photo on display.     The image has always resonated with me on a number of levels. It depicts bitter rivals sharing a moment of light-heartedness but it also depicts the raw power of the state in the form of mass-ranks of police officers pitched against a hopelessly under-equipped opponent whose only interest was in preserving jobs that most people wouldn’t have dreamed of taking even as a last resort. But most of all for me it stands as a reminder of a terrible defeat for the working class. Although we didn’t know it at the time the miners strike, more than 30 years ago, now was the last large scale industrial dispute in the UK. Since then we have seen wages stagnate for large numbers of workers along with an assault on terms and conditions and increasingly insecure employment most obviously exemplified by zero hours contracts.   All these things can be traced back to the defeat of the miners and the ensuing powerless of trade unions who never recovered from that defeat.

 

Doing public order cases always involves the interface between on the one hand the overwhelming power of the state with a police force which can, as we saw in the miners’ strike, easily be transformed into a para-military force with full backing of the government of the day and on the other hand the right to protest, and the right to a fair trial. Anyone who has ever tried a public order case in the Magistrates’ Court knows only too well how heavily the odds are stacked against those accused of offences and how hard it is to ensure that your client gets even a semblance of a fair hearing. Whenever I see that image, or as I write this now have it in my mind, it makes me smile but it also strengthens my resolve to do all I can for the clients I represent who like George Brealey are standing up for what they believe in.

Disclosure Failures – time to recognise we have a problem

This article first appeared on the website of Garden Court North Chambers on 31st January 2018. Please see an update at the end of this article

The recent disclosure fiascos show the criminal justice system is in deep crisis – why are senior figures denying this simple fact?

 

Following on from my article in December [here] on the near disaster in the case against Liam Allan, a young man charged with a number of very serious sex offences the CPS and Metropolitan Police Service have published a short joint review of the handling of the unused material in his case. [here]

 

In short the report puts the principal blame on the police officer in charge of the case [OIC] for failing to bring to the attention of prosecutors the existence of thousands of lines of data including hundreds of text messages which so obviously undermined the prosecution case that the complainant had been raped that as soon as the material was brought to light, three days after the trial had begun, the case was stopped at the request of the prosecution barrister even after the complainant had given her evidence.

 

The obvious flaw in the whole disclosure process is that under the Criminal Procedure and investigations Act 1996 and the accompanying Code of Practice [both can be accessed via endnotes in the CPS/MPS report], responsibility for listing items of unused material and revealing their existence depends on the police investigation the alleged crime.   If a police officer does not do this either because of pressure of work, lack of resources, lack of interest or because that particular officer is so driven by the desire to gain a conviction that he allows that to dominate his thinking, the disclosure process can be fatally compromised before the case has even begun to take proper shape.

 

The current scheme for disclosure was introduced as a direct response to the catastrophic failures of disclosure in such famous cases as those of the Birmingham 6 and the Guildford 4 in the 1970s. It was however also a government reaction to what were claimed to be “fishing expeditions” by defence lawyers looking for information that might help exonerate their clients and a desire not to “hand the keys to the warehouse over to the defence.”     Since it is almost always likely to be the defence who know better what material might help to establish their client’s innocence, the exclusion of the defence under the current scheme remains one of its key failures.   It is not therefore a great surprise that there have continued to be cases which collapse due to a failure of the prosecution to make proper disclosure of unused material and over the years such cases have involved drugs operations and even cases of murder and have certainly not be confined to cases of rape or other serious sexual assault.

 

In the case of Liam Allan the complainant’s phone was examined by the police and it seems that at an early stage the OIC failed to identify any material of relevance either to the prosecution case or the defence.   The existence of the phone download was mentioned on a Crime Reporting Information System [CRIS] log sent to the CPS but not disclosed to the defence but no mention of it was made on the unused material schedule which was in due course copied to the defence.

 

The CPS/MPS report also criticises the prosecutor at the CPS for failing to ask the OIC about the phone download given that at least he/she was aware of this as a result of seeing the CRIS report. A second prosecutor who took over conduct of the case is also criticised for not inquiring of the OIC as to the potential relevance of the phone download or its absence from the unused material schedule.

 

What might have been thought to be a golden opportunity to correct the previous mistakes, but which in the end only served to underline the weakness of the current disclosure provisions, came when the defence served their defence statement. This included a specific request for “all text messages between D and C during and after the relationship.”   The reference to text messages should have set the alarm bells ringing in the CPS office even if not with the OIC who had already decided there was nothing relevant to disclose.

 

It is apparent that the data from the mobile phone had been considered by the OIC because following a conference between the police, CPS and prosecuting counsel some text messages between C and her friend were served as evidence to be used in the trial. However since the OIC was still claiming that there was nothing relevant in the phone download in the sense of undermining the prosecution case or assisting the defence case it was agreed that the download did not need to be served on the defence.

 

And so it was that only on the first day of trial was newly instructed prosecution counsel asked by the defence barrister about the existence of numerous text messages between the complainant and D.  Despite being fobbed off with the by now regular refrain of “there’s nothing to disclose” prosecution counsel finally obtained a copy of the download and once this had been handed to the defence the true position was speedily established and Liam Allan was saved from the horror of a wrongful conviction for an offence he was not guilty of and the very long prison sentence that would inevitably have followed. It is still makes my blood run cold just thinking about the consequences of failure in this case.

 

None of this concern is reflected in the bland CPS/MPS report that itemises the errors made and recommends further training for those involved in disclosure of unused material and the appointment of “Disclosure Champions” but at no point acknowledges much less reflects on the near catastrophe that resulted from the failure in this case.   Nor has the response from senior legal figures to this and other similar failures that have recently come to light been the least bit encouraging. Announcing the review of all current rape cases the DPP Alison Saunders gave the impression that this was just a matter of dealing with a few isolated problems rather than a systemic crisis. Nor did she make any reference to the chronic lack of resources that she and everyone who deals with cases in the criminal courts is well aware of and many suspect to be at least one of the causes of disclosure failure in these cases. Then in a recent radio interview the Attorney-General, Jeremy Wright QC specifically denied that resources had any relevance to the problem that have arisen and went on in typical politician mode to quote some meaningless statistics about the number of new specialist prosecutors that have apparently been appointed.

 

I have no doubt that as Liam Allan’s solicitor Simone Meerabux has said some police officers put gaining convictions ahead of their duty to investigate cases fairly. As I have argued before the current policy of “believe the victim” may also be adding to the problem in discouraging even-handed investigation of alleged crimes. But to deny that a lack of adequate resources is also likely to be to blame here is to be wilfully blind.    The criminal justice system has been crippled by cuts in resources for the police, cuts to legal aid fees for those who both prosecute and defend criminal cases as well as attitudes and policies designed to favour one side of an adversarial process at the expense of the other. We have had a series of disastrous appointments to posts such as Lord Chancellor none of whom have had either the ability or the time to do anything meaningful to stop the damage to the system becoming worse.

 

We have now reached crisis point.  This week’s message from the Chair of the Criminal Bar Association spells that out. [Here] How many more near catastrophes do we need before some serious action is taken? The likes of the DPP, the Attorney-General and the Lord Chancellor should stop pandering to their political paymasters and do their job and speak out for the sake of all us.

Update August 2018

Liam Allan now Tweets at liam_allan95 and is organising an event on 24th November 2018 in Manchester entitled “Innovation of Justice.”

Why the policy of “believe the complainant” was behind the failure of disclosure in the case of Liam Allan

This article first appeared in December 2017 on the Garden court North website.

It’s easy sometimes to think that arguments about whether the police should believe a complainant [they are not a victim just because they make a complaint] without reservation or whether the police ought to receive a complaint respectfully whilst at the same time maintaining a mind open to the possibility that the complaint might not be all it is cracked up to be, are all rather abstract. If so the case of Liam Allan should do a lot to dispel such feelings. The current centre of attention is on the seemingly appalling failure of the process of disclosure of unused material. This took the form of a disc containing hundreds of text messages from the complainant to Mr Allan which plainly supported his claim that she had consented to sex and had not been raped. The role of the police in failing to make disclosure of evidence that should on a brief viewing have been obviously at odds with the complaint the police had received is also under scrutiny. But there are wider issues here that, if not addressed, will result in further cases like this in which an accused person may not be as lucky [in the end] as Liam Allan ultimately was.

 

The attitude of the police officer who failed to consider that the material easily passed the statutory test for disclosure was engendered by the very idea now written into the official policy of the College of Policing that means that a complainant in a sex case must be believed.     Any police officer who considered that her or his duty was to investigate the case fearlessly and with a view to seeing if the allegation would stand up in court or was likely to fail should have considered that text messages between the complainant and the accused in this case should have been scrutinised.

 

After all, its not as if Mr Allan’s lawyers didn’t do what they could to alert the prosecution to the fact that such material existed and if read and considered were completely devastating to the main thrust of the complaint namely that the complainant had been forced to have sex against her will. And the police didn’t deny that it did. They simply didn’t bother to read the material properly either because they were just lazy or more likely because they didn’t feel compelled to look for any material that might undermine the strength of the case the complainant had presented them with.  In other words the officer didn’t act as impartial investigator but, informed by police policy, simply took the complaint at face value and made no proper attempt to check out the phone records.

 

In the ‘Alice in Wonderland’ world we now live in when it comes to allegations of serious sexual assault “believe the complainant” means not pursuing leads that should have been followed. In this case that would have spared Mr Allan, an undoubtedly innocent man and his family, months of real anguish as he contemplated a very long period of many years in prison as a convicted sex offender, a lifetime on the sex offenders’ register, a career ruined before it began and diminishing prospects of ever finding meaningful work.

 

There are very few people around today who would argue that we need to return to the days when women weren’t taken seriously if they complained of sexual assault or a time when children weren’t even heard. But it is one thing to re-train police officers to take allegations seriously and another thing altogether to tell them they must accept the allegation as true for fear of adding to the complainant’s trauma.  This just means we have swapped one bad policy for another equally bad one. What we want and need police officers to do is to accept the allegation, take it seriously and do their job. They should investigate the complaint to see if there is supporting evidence to make the prospects of a conviction more likely in a genuine case. At the same time they should not be blinkered to the possibility that the allegation may not be true. They should investigate all lines of inquiry even if they tend to undermine the allegation and make an acquittal more likely. No decent police officer should have any interest in convicting an innocent person. They should gain as much professional pride from establishing the innocence of an accused person as in the conviction of the guilty.

 

At the end of October 2016, Sir Richard Henriques, a retired High Court judge with a wealth of experience in the criminal courts both as a barrister and judge produced a report [here] on Operation Yewtree, that began with allegations against Jimmy Savile and Op Midland, the inquiry into allegations against a number of prominent people in public life.  Apart from recommending that those who make complaints about sexual assault should not be called victims until the commission of a crime has been established in court, Sir Richard was scathing about the current policy of “believe the complainant”.   In typically forthright terms Sir Richard stated that “the imposed ‘obligation to believe’ removes” the obligation on an investigator to be impartial [para. 1.27] and ‘has the hallmark of bias”. [1.29] He points out “believe the complainant” means in effect “don’t believe the suspect”, it means that the complaint is not critically examined at any point before the complainant gives evidence in court and it involves a reversal of the burden of proof.

 

All of this is, of course, anathema to current thinking on the part of the College of Policing, some politicians and senior judges and it is apparent from reading his report that Sir Richard had significant disagreements with the policy of the College in this area.   In the current climate there is a real danger that the Henriques report will be brushed under the carpet with some thinking that Sir Richard’s thinking is out-dated and that he in fact represents part of the problem rather than the solution. But the uncomfortable fact remains that it is precisely the sort of thinking now espoused as official police policy that led to the near disaster in Liam Allan’s case. This was not just an appalling failure of disclosure which is quite bad enough but that failure is compound by continued adherence to a dangerously flawed policy of uncritical belief in the complaint from the point it is first received. If the recommendations made by Sir Richard are not adopted and implemented there is a very real chance that before long we will be discussing the case of another young man who has fallen victim to the same misguided policy of “believe the complainant.”

 

It isn’t necessary or appropriate to treat complainants as unworthy of belief on the one hand or with uncritical belief on the other. An even handed approach which meant that the police should be alive to the possibility the complaint might not be sustainable in court would have been enough to have triggered the idea that maybe the complainant’s phone records should be carefully examined to see if they either supported the complainant’s case or undermined it. It seems that only a fairly cursory viewing of the material should have caused the police to realise the case against Mr Allan was unsustainable. That way he would have been saved the agony of almost two years on bail awaiting a trial that should never have been required and justice would have been served.

 

The eighteenth century jurist Sir William Blackstone said in volume IV of his magisterial Commentaries on the Laws of England that “it is better that ten guilty men go free than that one innocent man should be condemned”. I don’t think he was the first person to express that sentiment, although the numbers quoted often vary, and he certainly wasn’t the last. It was a widely accepted sentiment that underscored the English legal system for centuries. It would be to the everlasting detriment and shame of the same system if that sentiment was ever to be regarded as disposable in the rush to bump up the rate of convictions.

Update August 2018

See also R v Kay 2017 EWCA Crim 2214 – another failure to check and disclose Facebook messages from the complainant

On 21st December 2017 an article in The Times stated that Sara Thornton, the head of the National Police Chiefs’ Council, had called for forces to rethink their policy of automatically believing alleged victims of sexual crime and has expressed concerns about police describing complainants as victims at the outset of an investigation before anything has been evaluated, let alone proven.

On the same day The Times also reported that Lord Macdonald of River Glaven, a former director of public prosecutions, had blamed a “victim culture” and the promotion of victims’ rights for police failures to reveal evidence that had bordered on contempt for defendants and their rights.

On 23rd April 2018 the College of Policing said in a statement here that they were continuing to gather views on the issue of automatically believing complainants.