Thursday, 27 October 2016

Bid to prevent defendants knowing who accuses them of a crime

A justice system Kafka would recognise
When I read The Trial by Kafka and Nineteen Eighty-Four by Orwell, I took them as warnings of how a bad justice system wrecks lives of those caught up in it. Sadly, some Members of Parliament and the House of Lords seem to view the books more as a guide to how they would like our Criminal Justice System to run.
Today, I read of plans to hide the names of accusers and witnesses from defendants in a large number of cases. Victims of sexual offences, such as rape, have had the right to lifelong anonymity for many years now. This means that it is a criminal offence to publish information that will lead to a complainant being identified. A Bill currently being considered by Parliament would extend that anonymity to bar defendants and their lawyers knowing the name of the person accusing them. This would apply not only in sexual offences, as has been reported in the press, but also in violent offences.

The anonymity currently offered to victims of sexual offences is not total, the complainant will be identified to people through being named in court and in proceedings but that disclosure is limited and, even if the press is present in court, they cannot report the name. Under the amendment to the Policing and Crime Bill introduced by crossbench Peer Lord Wigley who is a member of Plaid Cymru and Labour Peer, Lord Ponsonby of Shulbrede, the police would be banned from disclosing the identity of a victim or witness to a serious sexual or violent offence to the accused if it is reasonable to assume that such disclosure would put the victim or witness at risk of further harm. The clause suggests that the police should consider: previous convictions, mental health and access to “new technology” or social media. The clause applies regardless of whether the person has been charged or not. This is the clause: (Clause 228C at bottom of page 74)

“Victims and witnesses of serious crime: disclosure

(1) A police force or police officer may not disclose the identity of a victim or

witness of a serious sexual or violent offence to the person accused of the

offence, if it is reasonable to assume that such a disclosure would put the

victim or witness at risk of further harm.

 (2) In determining whether disclosure is reasonable for the purposes of subsection

(1), a police force or police officer must take into account the—

(a) previous convictions,

(b) mental health, and

(c) access to new technology or social media,

of the person accused of the offence.

(3) This section applies whether or not the person accused of the offence has been

charged with the offence.”

The effect of this clause is that defendants accused of sexual or violent offences would not be entitled to know the name of the person accusing them until they reach court – or possibly ever if the Bill is redrafted to make sense. This is a brilliant example of a terrible piece of legal drafting that is so full of holes it should never have been brought forward and, if Lord Wigley has any idea what he is talking about, cannot be thought of as a serious bid to get this law on the statute books.

The first problem is that subsection 3 tells us that the author of the clause is clearly hoping to prevent defendants ever being told who is accusing them, otherwise why include a ban on post-charge naming? The problem is that subsection 1 only applies to police forces and police officers, not to the CPS or court. So, you have the ridiculous position of police officers banned from uttering the name of the accused while the CPS and court are free to spill the beans. How will that work when the officers draft their witness statements? Will they withhold the name of complainants from the CPS because then the officer would be indirectly informing the defendant? Secondly, the test in subsection 1 is so wide as to encompass just about every conceivable sexual or violent offence. This also applies to the points to consider in subsection 2, especially the “access to new technology or social media”. This seems to suggest that the police should open their minds to any possible future technology that might become available, which is daft in itself but what does “access to… social media mean”? Is it intended that anybody who can access social media (everyone) will be banned from knowing the name of their accuser? Finally, what are the exceptions to the clause? How does one overturn a police officer’s decision? In short, there is no mention of a court having power to override a decision, in other words, it is a powerful piece of law that has no safeguards built in whatsoever. Please take a moment to remember that this applies to witnesses as well as complainants, which makes life doubly hard for defendants.

Let’s just assume for a minute that this isn’t a terrible piece of drafting that should have remained on the author’s computer in a file marked, “do not publish as an amendment to a Bill in Parliament ever.docx” and think about the implications of something like this becoming law.

One leading authority on criminal law has this to say on the principle of open justice:

“The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights (the right to a fair trial). This underpins the requirement for a prosecution witness to be identifiable not only to the defendant, but also to the open court. It supports the ability of the defendant to present his case and to test the prosecution case by cross-examination of prosecution witnesses.

(Underlining added)

Who said that? Um… that would be the view of the Crown Prosecution Service on their website! The CPS are correct, knowing who is accusing you of a crime is very important for a defendant because without that knowledge it is easy to overlook key pieces of evidence or pursue the wrong avenue of defence. Sometimes I want to bang my head against a wall and cry; when even the nation’s main prosecuting authority is telling you that open justice supports a defendant in presenting his case you should be hearing sirens and seeing bright red flashing lights when you propose removing that right!

I know that certain people like to imagine that false allegations are few and far between but they are not so rare that we can be cavalier in our approach to achieving a fair and balanced justice system for everyone involved, which includes defendants. This is particularly true of false allegations of assault. I’m sure lawyers all have stories to tell and I doubt there are any official statistics, but I have absolutely no doubt that false allegations of assault are made every day. My favourite must be a woman who accused her husband (they were about to divorce) of assaulting her. Three members of her own blood-family told police it hadn’t happened and her “bruises” turned out to be a skin disorder she’d had for at least the past decade; the client was still put through the wringer of being arrested and held in a cell for about 20 hours before being released without charge.
Who among us can forget the case of Mark Pearson who was accused by a stranger of sexual assault by penetration? It was claimed that he put his hand up the skirt of a “well-known actress” and penetrated her vagina with his fingers as she walked through Waterloo train station. Mr Pearson was eventually cleared by a jury after CCTV showed the assault would have been completely impossible in the fraction of a second that their paths crossed. Let’s be clear, this was a very clear and specific allegation that simply did not take place: it was a false allegation made against a total stranger. It’s also a case in which the CPS presented their evidence in what seems to have been a misleading way to create a false impression that Mr Pearson had far more time to commit the alleged crime than there was. People make all sorts of allegations of crimes to get one up on others, e.g. James Dabbs who is just beginning a 20-week gaol sentence for falsely accusing his ex-wife of distributing revenge porn pictures on the internet when he had posted the pictures himself.

Knowing who is accusing you of a crime is important because people do make false allegations and prosecutors do present evidence in the way that puts their case in the strongest positions, even if that evidence is misleading – they shouldn’t but that’s an argument for another day. If you do not know who is accusing you then how can you possibly know whether there is a motive for somebody lying about you?

In 2007/2008, I was representing a young man accused of murder and GBH. Two witnesses gave evidence against him. Both witnesses identified my client by a street name he had been known to use in the past when he was about 13, which would have been 6 years before the murder. Their accounts were very different and one of them defied belief as it was medically impossible (W claimed V fought for 5 minutes after the fatal blow was struck, however, the Crown's own pathologist said he would have been dead before he hit the floor). There was no other evidence in the case, apart from cell site that initially put him at the scene, although later analysis by a defence expert showed that the prosecution expert had the cell tower in the wrong place and so the conclusions about locations were also wrong. In that case, my client was able to say that “the witnesses are lying” but he couldn’t say very much more than that because we had no idea who they were or why they would decide to lie about him. In that case, the court ordered the Crown to disclosure the witnesses names because he accepted my client could not have a fair trial. The Crown dropped the case against us the day before the trial was due to begin! Had he been forced to go ahead without being able to give a reason for the witnesses falsely accusing him, I’ve no doubt that in an emotive trial involving a dead 15 year old there would have been a real risk of a wrongful conviction. A few months after that case, and another higher profile one, Parliament rushed through the Criminal Evidence (Witness Anonymity) Act 2008, which was quickly repealed for its dreadfulness and replaced with Part 3, Chapter 2 of the Coroners and Justice Act 2009

There are cases where it is appropriate to withhold witness names, in those cases the police can approach a Justice of the Peace to ask for an investigation anonymity order to prohibit the disclosure of information that identifies or might enable the identification of a specified person, under section 76 of the 2009 Act. Note, this is a decision made by a court on an application by the police. It does not give the police carte blanche to make decisions on anonymity. It also has safeguards built in for dealing with disclosure, such as where the person revealing the information does not know about the order.

When a case reaches court, section 86 of the 2009 Act allows a court to make a witness anonymity order in criminal proceedings. In doing so, the court may take any specified measures as it considers appropriate, including withholding the witness’s name and removing it from materials disclosed to any party in the proceedings. The court can also restrict questions in cross-examination that might identify the witness and use voice modulation to distort his or her voice.

Currently, these orders are only available in cases of murder or manslaughter. You might think that rather than create a new draconian power such as the one Lords Wigley and Ponsonby are seeking they might simply petition the Secretary of State to exercise her power under section 74(4) of the 2009 Act to add offences such as rape and GBH to the list of offences that qualify for a witness anonymity order. As our previous Lord Chancellor said, people are tired of the opinions of experts.

I am dubious whether their Lordships really intend this clause to become law. I note it is said to have been drafted by a campaign group called Voice4Victims and I wonder whether this isn’t simply an effort to get some publicity for the group and its cause. Whatever the point, I am very sure that this will not become law but it does show the terrifying path the UK is treading. A nation that was once the bastion of fairness and justice is now reduced to trying to ban defendants from even knowing who is accusing them.

Tuesday, 18 October 2016

Jury selection: the facts

This is not how it happens in England and Wales

Following the Ched Evans verdict, you can read my analysis of the case here, the hysteria continues completely unabated by anything so unhelpful as facts and reality - please read the post above that was taken from Twitter. Today, I read outrage on Twitter at how women jurors are abused by the courts who require them to answer person questions about being assaulted by men in open court prior to being allowed to sit on a jury.

As I said in my post on the Ched Evans case, it is this sort of uninformed nonsense that will put people off reporting crimes not the reality, because the reality is that this sort of thing simply does not happen in the UK, despite claims by some on Twitter.
Blame the judges

Let’s look at the claim quickly. First, we see it’s posted by somebody called “Shawna Gore” – sounds like an American name to me and sure enough a very quick search on Facebook reveals that this person works in Miami. Last time I checked Miami wasn’t in England and Wales, much less England and Wales. In the very first sentence we see reference to a “defense attorney”. Note the spelling of “defense” and the use of “attorney”, neither of which are common in the UK. The account the continues with an account of being asked questions by the “defense attorney” about whether they have ever been assaulted by a man.

In ye olden days, the defence had the right to challenge a juror without any reason being given. This could be used to create favourable juries, e.g. and all male jury in rape cases. That right was abolished by section 118 of the Criminal Justice Act 1988. The Crown retains the right, but exercises it rarely and mostly only in cases involving national security.

The defence may still challenge a juror if there is a good reason, typically where the person is not eligible to serve under section 1 of the Juries Act 1974, or who are disqualified under Schedule 1 of the same Act. Questions can be asked of the juror but only after the party challenging has laid a foundation of fact such as to give rise to a prima facie case that supports the challenge. When questioned, the cross-examination must be limited to the jurors qualification to serve or the “leaning of his affection”, which I believe means his or her personal feelings/knowledge of the defendant or another witness in the case. The cross examination must not touch upon whether the juror has previously been convicted of an offence or whether he or she has previously expressed a hostile opinion on the guilt of the defendant.

The Criminal Practice Directions, at 26D.2 and the Crown Court Bench Book make clear that a judge must not exercise his or her power to exclude jurors from particular sections of society, such as women or particular ethnicities.
I'm sorry but I don't believe you

So, could the questioning of 12 women as to whether they have previously been victims of assault happen in England and Wales? The answer must be “no”. Because before a juror can be questioned the challenger must present evidence supporting the challenge, there is thus no procedure in this country to allow a section of the jury to be arbitrarily challenged in the way described.

Further, while the Crown can challenge without reason that power is regulated by the Attorney General’s Guidelines and are used almost exclusively in cases involving national security.

Finally, while a judge can prevent a juror sitting there are again rules preventing that power being used arbitrarily to exclude sections of society.

Whether the procedure described in the original post is used in the USA I do not know, but it is clear that those using it to show that the system in England and Wales (and particularly in the Ched Evans case) is rigged against women are being misleading. Those claiming to have witnessed it happening in E&W have either witnessed a gross breach of the law or are not being honest about what they saw.
What I suspect happened is that a judge asked potential jurors whether there is a reason they cannot serve on this jury. In my experience, judges typically give people an opportunity to speak privately with the judge about their reason but I note the Crown Court Bench Book recommends judges ask jurors to write a note for him and that discussion of the reason is done away from the hearing of others jurors. That is a very different proposition to potential jurors being asked personal and intrusive questions about their personal lives.

Monday, 17 October 2016

Ched Evans

Ched Evans
Before I begin, I will say that at around 4,500 words this is probably the longest blog I’ve ever posted but I think it’s all necessary to set the scene for this case and explain the background that has been largely ignored or airbrushed in the press. Despite its length, I have not attempted to include every little detail of either fact or law but have done my best to provide a balanced picture of the Ched Evans case, what happened and why the courts reached the decisions they did.
There has been so much written about the Ched Evans case over the past weekend, much of it based on a very shaky grasp of the facts and law, that I decided I would read up about the case and weigh in (hopefully on a slightly firmer footing than most of the articles I’ve read so far).

Broadly speaking there seem to be three groups who have opinions on the case:

1.       Sexual violence groups (including people describing themselves as “radical feminists”) who appear to take the view that the case is awful, the Court of Appeal were wrong and the jury’s verdict was an outrageous win for rapists that will prevent women coming forward to complain about rape – although see the end of this blog for an alternative way the jury could have reached their verdict without reference to the new evidence;

2.       The (usually) men who hate feminists (radical or otherwise) who appear to think that it’s a bloody good thing Evans was acquitted no matter what; and

3.       Lawyers, who generally seem to think that most of those in groups 1 and 2 have failed to grasp the reality behind the case.

Nobody suggested X "was asking for it"

From what I have read online and in the press there is a common link between those in groups 1 and 2, which is that they have very fixed ideas on what the law is, what the law should be and that their personal opinions are infallible. It has to be said that very few people in either group appears to have actually read either the 2012 or 2016 judgments handed down by the Court of Appeal in this case and both do need to be considered to understand the case.

The Facts

On the evening of the 29th May 2011, the complainant (the Court of Appeal calls her “X” and so I will do so as well), finished work around midnight then headed home to shower and change. She arrived at a bar in Rhyl around 1.30am on the 30th May 2011 where she drank vodka and left around 3am. In her evidence, she said she could not recall leaving the club but did have a vague memory of being in a kebab shop. CCTV was found by the police, which showed her to be drunk. The Lord Chief Justice giving judgment in 2012 described the CCTV thus:

“The CCTV footage, which we have not seen because it is accepted that this was accurately summarised by the judge in his summing-up, showed that while she was inside the kebab shop she was unsteady on her feet.  At one point she fell over and landed on the floor. On the other hand, outside the kebab shop she could be seen eating pizza from a large box, although she was also seen to stumble, squat, lose her balance, and walk unsteadily.  Indeed, she left her handbag in the shop.  Based on this evidence, the prosecution case was that she was very drunk.”

In addition to the CCTV, various people who met X that night described her as being drunk.

Around 4am, X met a man called Mr McDonald who is a close friend of Mr Evans, in Queen Street. A conversation was struck up in which X asked Mr McDonald where he was going and he told her he was going to a hotel. X then said she would come with him. They got into a taxi together and headed to the hotel where they eventually had sex. During the taxi ride, Mr McDonald sent a text message to Mr Evans saying that he had “got a bird”.

The night porter at the hotel later told police that X had been “extremely drunk” when she arrived at the hotel.

Mr Evans had booked the hotel room in Mr McDonald’s name, both men would later tell the court this was so that Mr McDonald and another friend would have a place to stay and not, as the Crown said, so that they would have a place to take a girl for sex. Whatever the reason for booking the room, Mr Evans arrived at the hotel after Mr McDonald and persuaded the night porter to provide him with a key to Mr McDonald’s room saying that he had booked the room and his friend no longer needed it. The porter was suspicious and went to the room after Mr Evans had entered to listen at the door. He told the court that he heard the sound of a couple having sex and a male voice saying, “are you going to suck that cock?” He had no further concerns and so left.

The evidence from Messrs McDonald and Evans was that when Mr Evans entered the room, Mr McDonald and X were engaged in enthusiastic consensual sex. Mr McDonald asked X whether his friend could join in and she replied, “yes.” Mr Evans says that he then performed oral sex on X before having vaginal sex with her.

After the men had finished with X they both left, Mr McDonald via the hotel reception where he told the night porter to watch out for the girl in the room because she was not well. While Mr Evans left via a fire escape.

Nothing to suggest X told any lies at all!

The following morning, X awoke around 11.30am to find herself alone, naked and having soiled the bed. She had no recollection of the events of the night before that led to her being in the hotel room. She tried to piece together what happened with the help of her friends but when unable to do so was persuaded to speak with the police. It is worth saying that X did not report that she had been raped and has never claimed that she was raped, nor has she suggested that she was incapable of consenting to sex that night! Her evidence through both trials appears to have been that she could not remember what happened.

Expert evidence was called by the defence in the original trial that showed X’s blood alcohol level would have been around 2 and a half times the drink driving limit, which is about 87 microgrammes per 100 ml of breath – not an uncommon reading for somebody accused of drink driving (in once case I represented a man who blew 175 but was able to function so normally that the police did not seriously think he would be over the limit – they said so in their witness statements!) The defence expert said that this level of alcohol would cause slurred speech and unsteadiness on one’s feet but would not normally cause memory loss. The problem with evidence like this is that alcohol can have different effects on people. My client who blew 175 had a perfect recollection of events even though somebody else reaching that level might well struggle to survive at all.

The 2012 appeal

I’ll not spend too much time on the 2012 appeal beyond outlining what I see as the key points.

During the first appeal in 2012, the defence produced evidence from Professor John Birch, a psychopharmacologist (I had to study psychopharmacology at university and I can promise you it’s a very complicated subject). The Professor reported that the evidence in the case suggested that X’s short term memory was functioning but that alcohol interfered with the translation of short term memory into long term storage. He made clear that, “… the fact that she does no longer remember having made a decision is a failure of the memory process and not of the decision-making process. Evidence of memory loss as a result of anterior-grade amnesia does not in itself prove that she lacked the capacity to consent." This is not wholly different from the comments of the trial judge who told the jury that, “… there are various stages of consciousness, from being wide awake to dim awareness of reality.  In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. “

The first appeal was brought on three grounds, each of which were rejected:

1.       Fresh evidence from Professor Birch – this was rejected as adding nothing to the defence case and because the trial judge had dealt with the issues appropriately;

2.       Inconsistent verdicts – in the original trial Mr McDonald was acquitted while Mr Evans was convicted. On its face this may appear inconsistent but when you consider that a jury could decide that Mr McDonald reasonably believed X was consenting based on the circumstances in which they met, what happened prior to Mr Evans arrival and the fact he left via the front of the hotel, you can (and indeed the Court of Appeal did) conclude that there were sufficient differences to allow the two verdicts to be completely consistent with one another; and

3.       The “lurking doubt” principle – this effectively allows the appeal courts to overturn a jury verdict in the interests of justice. It is rarely successful and was not successful in this case.

The 2016 appeal

In March 2016, the Court of Appeal heard a second appeal against conviction following a referral to them by the Criminal Cases Review Commission.

This appeal focused on new evidence from three witnesses, Tristin Owens, Angela Owens and Steven Hughes, which Mr Evans new legal team said undermined the safety of his conviction.

The new evidence

Essentially, Tristin Owens and Steven Hughes are both men who have had sex with X both before and after the incident involving Messrs McDonald and Evans.

Mr Owens said he has known X for 13 years and Mr Evans for 7 or 8 years. He describes four occasions when he had been socialising with X at the Zu Bar when X had asked to come home with Mr Owens. On the first three occasions, although there was foreplay no sexual intercourse took place. On each occasion, X was unable to recall whether they had sex or not and asked Mr Owens. He says that he was surprised as she had not appeared that drunk the night before. The fourth occasion occurred on a Friday night around two weeks after the incident with Messrs McDonald and Evans. X had again approached Mr Owens in the Zu Bar and asked to come home with him, she was drunk but bale to stand and talk. According to Mr Owens she promised that she would, “show you a good time” if he took her home. He agreed and they took a taxi to the home Mr Owens shared with his mother. On this occasion, they had sex. Mr Owens reports that X was shouting “fuck me, fuck me harder” and asked that they change positions so that they were in the “doggy” position.

Witnesses gave evidence they had not been paid reward

X provided a statement in which she said that she had sex with Mr Owens about two months before the incident in the hotel. But, Mrs Owens provided some corroboration to Mr Owens story by saying that she had seen X in bed with her son on a number of occasions. She asked whether they had sex but Mr Owens denied it because he did not want his mother to know. Mrs Owens says that she told her son that X had recently made a complaint of rape against Mr Evans and that Mr Owens should stay away from her. If true, it would clearly place the incident in the weeks after the hotel incident and not a two months before as X claimed.

Steven Hughes met X through Facebook and in March or April 2011 the pair met in person at X’s workplace before going to Mr Hughes home for a party. X returned to Mr Hughes home the following day when they had sex. After this they met five or six times for sex. The first few times were by mutual arrangement but the last few were at X’s instigation when she would text him to meet her while she was drunk. Mr Hughes described one incident that occurred on the 28th May, i.e. the night before the incident with Messrs McDonald and Evans, when he was awoken in the early hours by a call from X asking him to meet her. X was very drunk when Mr Hughes arrived and he had not previously seen her in that state. He described her as instigating all the sexual activity that night. They had sex in various positions, including in the doggy position. She demanded he “go harder, go harder” during sex and repeated this a couple of times.

Mr Hughes does not know either Mr Evans or Mr Owens personally.
Matty, Luke & Andrew: you are the problem!

X provided a statement in July 2015 in which she said she had sex with Mr Owens two months before the incident in question, not two weeks after. She said that she would never use the words, “fuck me, fuck me harder” as Mr Owens claimed. However, when asked about using these words during the original trial (as the defendants had said she used them), X said she could not remember and did not say then that they were words she would never say. She was not asked about sex with Mr Hughes at the time of the appeal and I have been unable to find a report of her answers to questions about this evidence from the second trial.

The law

We’re nearly 2,000 words in so, if you’re still with me, I suppose it’s probably time for a bit of law.

The Court of Appeal can overturn a conviction where it finds that had the new evidence been given at trial it could have affected the decision of the jury to convict. In considering this point, the Court of Appeal must have regard to the factors set out in section 23 of the Criminal Appeal Act 1968:

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

In establishing admissibility, the defence are at a disadvantage with this evidence because section 41 of the Youth Justice and Criminal Evidence Act 1999 states:

“If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant”

There are exceptions to this rule and it is the use of one of these exceptions that has caused so much controversy in this case. First, it is worth saying that the Criminal Cases Review Commission took the view that this evidence was admissible under section 41(3)(a) in that the evidence does not go to an issue of consent but rather towards whether Mr Evans might have a reasonable belief that X was consenting to sex with him. This argument does not appear to have been advanced by Counsel at the appeal. Instead Counsel relied upon section 41(3)(c)(i), which allows evidence that goes to whether X was consenting and where evidence of sexual behaviour of the complainant was so similar to what is said to have happened with Messrs Owens and Hughes that it cannot reasonably be explained as a coincidence.

The Court of Appeal considered the case of R v A (No. 2), which was decided by the House of Lords in 2002 and in which Lord Clyde said of “similar” evidence:

"It is only a similarity that is required, not an identity... Further the similarity must be such as cannot reasonably be explained as a coincidence. To my mind that does not necessitate that the similarity has to be in some rare or bizarre conduct. So long as the particular factor goes beyond the realm of what could reasonably be explained as a coincidence, it should suffice. Something about the sexual behaviour of the complainant on each of the occasions, such as something said or done by him or her which is not so unremarkable as to be reasonably explained as a coincidence has to be found."

The Court also considered R v T (Abdul), a 2004 case in which T was accused of raping his long term partner inside a climbing frame in a children’s playground. He sought to cross-examine his partner on the basis that they had similar consensual sex at the same location in the same position four weeks earlier. In that case, the court observed:

"It is now accepted that the evidence relating to the previous sexual intercourse within the climbing frame was similar within the wording of section 41(3)(c)(i). As it would seem to us, it is clearly arguable that the adoption of the same respective positions on that occasion as on the occasion the subject of the trial would also be similar within section 41(3)(c)(i). Indeed it is arguable that the consenting oral sex should be admissible, if not because it is similar, at least, in order to avoid there being an unfair trial."

So, we can see that to be similar evidence does not need to be rare or bizarre provided it is not so unremarkable that it cannot be reasonably explained by coincidence. We also see that evidence of sex taking place in the same location and same position can be similar enough.

                Defence case

At the appeal, Counsel argued that the similarities between the accounts of Messrs Evans, Owens and Hughes as to X’s sexual behaviour were so similar that they could not be mere coincidence. In particular, Counsel pointed to the fact that all three witnesses describe a woman who, in May and June 2011, would go out drinking, engage in sexual intercourse (both vaginally and orally) enthusiastically, direct her partners to have intercourse in particular positions and used a distinctive expression demanding “harder” intercourse with all three partners. One of the witnesses was able to give evidence of X failing to remember what had happened the night before on several occasions despite not appearing that drunk.

I suspect she might feel differently if she were on trial

The Defence argued that the new evidence was sufficient to establish a ground of appeal and that the explanation for it not being produced at the original trial was that neither Mr Evans nor the police were aware of the evidence of Mr Owens evidence at the time of the original trial. It was argued that while the defence did know of Mr Hughes evidence the trial lawyers had not appreciated that they might be able to rely upon his account because his original account lacked the detail necessary to alert trial Counsel to this fact and because his original trial lawyers had been focused on an alternative defence aimed at attacking X’s claimed amnesia.

                Prosecution case

The prosecution took the view that the evidence was not credible nor admissible for the purposes of section 23 of the Criminal Appeal Act 1968.

In respect of admissibility, the Crown argued that simply being a sexually active woman who enjoys sex is far from unusual. Counsel described the words “fuck me harder” as a common expression that can reasonably be explained by coincidence. Sadly, the report does not reveal whether Counsel relied on any evidence to back up the assertion that this expression is common. The court would later criticise this approach, pointing out that the test is whether the facts are “similar” not “unusual” as was made clear in R v A (No.2).

In respect to the witnesses’ credibility, the Crown argued that the new witnesses had been put up to giving their account and fed information by people close to the appellant. Counsel also argued that the witnesses were not sufficiently consistent with Mr Evans’ account. At the second trial, the Crown alleged that both men had been motivated by a £50,000 reward put up by friends of Mr Evans.

The prosecution said that there was no good explanation for why this evidence was not used at the first trial and, in any event, the court should not encourage this type of post-trial investigation into the sexual behaviour of a complainant.

At this point, I must say that I disagree with the Crown’s point about post-trial investigations. If somebody is innocent, then that is the most important thing and if evidence comes to light to show it then we should not ignore it merely out of principle.

                The Court’s decision

We know, of course, that the Court found the evidence was capable of belief – that does not mean that they accepted it but merely that it is something that a jury could believe. They did find that there was a reasonable explanation for the failure to adduce the evidence at trial and so we turn to the question of admissibility, which has got everybody so worked up.

Lady Hallett giving judgment for the Court said that the three appeal judges had been satisfied that the evidence would have been relevant and admissible at trial and is, arguably, sufficiently serious to come within the terms of section 41(3)(c)(i). Not only that but it may also have been admissible under section 41(3)(a) as going to whether Mr Evans would have had reasonable belief that X was consenting.

Lady Hallett highlighted that the evidence of the two independent witnesses showed a woman who had been drinking, instigated sexual activity, directed her partners into particular positions and used specific words of encouragement. She made the point that the Crown had erred in arguing there was nothing unusual about X’s behaviour because the test is whether the behaviours are similar, which is clear from the case of R v A (No. 2).

Lady Hallett went on to say that complainants in these cases deserve protection from intrusive and unnecessary questioning about their sexual history. She said that this type of evidence and questioning should only be allowed in very extreme and rare cases. The court decided that this was one such rare case and allowed the appeal.

Press reports

You can decide for yourself whether you think these facts are so similar that they should have been put before the jury. But, I have to say that the mass-hysteria that seems to have taken over much of the press is unwarranted and, far worse, it is ultimately self-fulfilling.

Uninformed reporting will do this not the Evans case

A number of reports have concluded that this is a step backwards to the bad old days when past sexual history of rape complainants was fair game. The complaint that this will simply encourage the old tactic of getting a few mates to say they all had sex with the girl the week before and she was well up for it is a nonsense. There are, as we’ve seen, strict rules for allowing this evidence to go before a jury. In this case, X’s whole sexual past was not fair game and the defence were limited to the very specific incidents detailed by Messrs Owens and Hughes and the similar experiences they recounted to that of Mr Evans. There was no headlong attack on X’s past, rather a detailed and forensic approach to events that the Court of Appeal considered to be so similar that they could not be ignored. Had X’s evidence been that she did not consent rather than that she did not remember then the Court of Appeal may have reached a different decision.

The rules on admitting past sexual history evidence have existed since 1999 and, thus far, the old tactics have remained dead. There is nothing in the Evans case that creates a new legal precedent for how future courts will approach these cases, indeed, the case relies heavily on cases from the early 2000s, none of which managed to open the floodgates to attacks on the sexual history of complainants.

If journalists were to report that fact, then there could be little or no suggestion that the Evans case will put people off making future complaints of rape and sexual assault. By the way, note I use the word “people” not “women” because men are frequently the victims of rape and sexual assault too – in 1998 there were 2.78 million male rape victims in the USA and in the UK there are 12,000 rapes committed against men each year, far less than are committed against women but not so few that they should be ignored by campaign groups as they frequently seem to be.

Journalists work because people will buy their publications. Pressure groups exist because they can keep their issue in the press. To that extent there is little incentive for either newspapers or pressure groups to provide an honest, accurate reflection of the law and how it was applied in this case because stories saying “rarely used law applied in exceptionally unusual case” just doesn’t sell stories or keep your issue in the public eye.

Was it the new evidence that won the case?

Of course, while everybody is getting worked up about this case being won because of the new evidence allowed in by the Court of Appeal it’s worth remembering that we have no idea how significant the jury found that piece of evidence.

The judge in the second trial provided three steps for the jury to consider:

1. Are you sure that when the defendant intentionally penetrated the vagina of the complainant she did not consent?

2. Are you sure the defendant did not genuinely believe that the complainant consented?

3. Are you sure that the defendant’s belief in the complainant’s consent was reasonable?

Clearly if the jury answered “no” to questions 1 or 2 or “yes” to question 3 then they must acquit.

For all we know, the jury of seven women and five men may have concluded that the accounts of Messrs Owens and Hughes were an unimportant distraction from the real issue of whether X actually had capacity to consent to sex. The Crown’s case was always on the basis that she lacked the ability to consent, since X cannot say what happened the Crown cannot say that she refused to consent.

I think that a very important exchange took place when Ms Khan QC for the defence was cross examining X in the second trial. Here is how it was reported by the Sun on their live update at the time:

“Ms Khan is asking about a text message the complainant sent to a friend.

She said: “You will accept at that time, you were capable of texting, spelling it all correctly and putting a kiss at the end?”

The complainant agreed.

The defence barrister put it to the woman she was able to order food in the takeaway, although she was in “memory blackout”.

The woman said she could not remember.

Ms Khan then asked about the complainant’s actions in the taxi. The court heard she was told by the driver she could not eat pizza in the back so got out and into the front seat.

The defence barrister said: “You were capable of understanding instructions and understanding what was being said?”

The complainant agreed.

Ms Khan said: “Looking at all of those actions, although you were in memory blackout, that does not mean you were unconscious, incapable of movement, incapable of making decisions?”

The woman agreed.”

Taken with the expert evidence of Professor Birch that a failure in memory does not imply a failure in decision making skills, which was presumably relied upon by the Defence and the direction the jury would undoubtedly have been given by the judge as happened in the first trial. Defence Counsel certainly reminded the jury that a person can be drunk and consent several times and that she can fail to remember what happened but that does not vitiate consent if she had capacity to give it. On that basis, you may think that the jury could have reached their verdict without any reference whatsoever to the new evidence from the two former partners.

Friday, 14 October 2016

Limiting duration of witness’s evidence


A judge recently threatened to curtail the length of my examination in chief of a defendant, which I thought a little unfair since a) he was on trial so should be able to give his evidence in his own words (in this case the defendant was not a man given to succinct answers and the judge clearly hated that); and b) he had only been in the witness box for 3 minutes when she lost patience with him. I’ve heard stories of district judges and magistrates threatening to cut advocates short during questioning of witnesses but this was the first time a judge had proposed to do it in one of my cases.

The basis for these threats is the Criminal Procedure Rules (CrimPR), rule 3.11(d), which allows a judge to limit:

(i)                  The examination, cross-examination or re-examination of a witness; and

(ii)                 The duration of any stage of the hearing.

The exercise of CrimPR 3.11(d) should be undertaken with an eye on the overriding objective, which requires a court to deal with a case “justly” and encompasses “dealing with the case efficiently and expeditiously”.

CrimPR 3.11(d) reflects and expands on rule 32.1(3) of the Civil Procedure Rules, which permits a civil court to limit cross-examination.

Both the Criminal and Civil versions of the rules appear to provide a wide discretion to limit oral evidence of witnesses with little to fetter the judge’s power but I would argue a judge should only limit examination of any witness where it is in the interests of justice to do so, or at least where it will not harm justice to limit the examination. Examples of suitable situations might be where a judge has reached a conclusion on an issue (or where the point was never in issue) but where a witness continues to give irrelevant evidence, e.g. D is charged with drink driving and being drunk in charge as an alternative. Having heard the evidence, the judge has decided there is no evidence D was driving and dismisses the charge at half time but then D gives evidence that he was not driving.

In the case I appeared in, the judge explained she would limit the examination in chief because she had “other cases to deal with and the Criminal Procedure Rules require me to have regard to those cases when dealing with this case.” Now, to the best of my knowledge, this is not a requirement of the Criminal Procedure Rules, but it is, I suspect, the main reason why so many courts threaten to limit examination time. I would suggest that having regard to other cases is not a valid reason for limiting examination of a witness – the other cases can be put off to another day if necessary and it is not the fault of any defendant that courts routinely list more work than they can handle.

In Hayes v Transco Plc the trial judge limited cross-examination under Part 32.1(3) of the Civil Procedure Rules to “five more minutes”. He also refused to allow one of the parties to call further witnesses to rebut a claim made earlier in proceedings. The judge’s reasoning was that he wanted to finish the case by the next day otherwise there would be a long gap before he could return to it. The Court of Appeal disagreed that admitting the evidence and allowing more time for cross-examination would not have prevented the case concluding the following day. In addition, the appeal court described the decision to limit cross-examination of a key witness as “unfair” and “outside the acceptable range of decisions of which the judge could legitimately arrive.”

In my opinion, were a court to prevent a defendant giving his evidence or prevent an advocate completing his cross-examination because of time pressures caused entirely by court listing practices that would also be a decision that was unfair and outside the acceptable range of decisions of which a judge could legitimately arrive.

Advocate appearing in court should always ask the court to explain why they are limiting time for examination of witnesses and, where that reason conflicts with the overriding objective, the advocate should warn the court of this and cite the words of the Court of Appeal in Hayes v Transco Plc. If all else fails, appeal!

I’ve long been critical of courts that take the “Speedy” element of “Criminal Justice: Summary, Simple, Speedy” far too literally and usually to the detriment of the “Justice” part of the phrase. While there may well be good reasons to limit examination of witnesses, doing it because the court listed too many cases for a particular day is not one of them.

Friday, 7 October 2016

Giving evidence at court

How you give evidence is every bit as important as what you say

Giving evidence can be a daunting experience for many people and even those who are used to public speaking can find the formality of a courtroom off-putting.  In this post, I hope to give you a better idea of what will happen when you go into court and how you can maximise the impact of your evidence.


Whether you are a witness for the defence or prosecution the process of giving evidence is the same.  Just remember that unless you are the defendant you must wait outside the courtroom before you give your evidence unless the court has agreed you can enter the room sooner.

Being sworn in

First, you will be called into the courtroom by a member of the court staff who will direct you to the witness box.  You will be asked whether you have any religious beliefs.  If you do then you will be handed the appropriate religious book along with an oath for you to read.  If you are not religious then you will be asked to affirm.
Whether you swear on a religious book or affirm you are promising to tell the truth.  Lying in the witness box after you have taken the oath is a crime called perjury. A conviction for perjury will usually result in a prison sentence.
Once you are sworn in, the solicitor who called you to give evidence will ask you a number of simple questions to help you get settled in.  Questioning will usually begin with, “please give the court your full name” and may continue with questions about your age, the area where you live and your employment. We ask these basic and simple questions to give you a chance to get used to answering questions in the courtroom and you may find that the solicitor or judge asks you to keep your voice up, speak slower and so on. After a few settling in questions, the lawyer will move on to deal with the reason you are at court.

Examination in chief

The solicitor who calls you to give evidence will take you through the story that you have come to the court to tell.  Usually, you will have given a witness statement to the police or a defence solicitor.  The solicitor questioning you in court will use that statement as a basis for the questions he or she asks you.
When you are being questioned by your own side, the solicitor is only allowed to ask you non-leading questions.  That means questions that do not lead you to give a particular answer.  You can expect lots of questions beginning with how, what, who, where, why and when as these types of questions are rarely leading.
You must always listen to the question you are being asked and answer only that question as succinctly as possible.  So if you are asked, “what time did you arrive at the party?”  Your answer should be the time you arrived the party, many witnesses feel the need to add unnecessary detail, e.g. “Well we were going to get there for 7 but we were late so we ended up getting there at 8 and when we got there I saw my friend Dan and we had a drink and… etc etc”.
It is very easy to go off on a tangent when somebody is asking you who, what, why, when, where or how questions but there may be things that your advocate wants you to tell the court and things he does not want the court to hear, for example, something you have to say may be inadmissible as evidence or both parties may have agreed not to mention a particular fact.  This is why you should only answer the question you are being asked.

Cross examination

After you have given your account to the solicitor who called you there will be a number of questions from the other solicitors in the case.  If you are giving evidence for the defence, then you will be asked questions by the prosecutor and may be asked some by any co-defendants as well.
In cross-examination, the solicitor is allowed to phrase questions however he or she likes – you may find that the “questions” are really just statements with “do you agree?” stuck on the end. 
The questions you should expect will vary depending on the evidence you are giving.  If you are an eyewitness to an event, then a solicitor may try to undermine your account by implying that your view was not as good as you claim or that you missed some important part of the incident.  He or she may also try to highlight any internal inconsistencies in your account, for example, people often underestimate times so you might think something has taken one hour but an investigation of the times you arrive at a place and leave could reveal your timings to be inaccurate or unlikely.
Where you are giving evidence of an unremarkable event, for example, John claims his drink has been laced with vodka and you are giving evidence that John only drank two pints of weak beer a prosecutor will suggest that there is no reason for you to remember what your friend drank on a particular night some time ago.  The implication being that you must be lying.  So, if something sticks out in your memory be ready to say why it is so memorable.
An effective advocate will seek to put a series of propositions to you each of which seem innocent enough but at the end she will put a proposition that you do not want to agree with, but cannot easily dispute given all your previous answers – lawyers call this leading a witness up the garden path.  For example, in a case where you have pleaded guilty to drink driving and are arguing that you should not be disqualified as somebody else laced your beer with vodka it is necessary for the defence to prove that you did not realise you had been affected by alcohol, so a prosecutor might put questions like this:
Q. How old are you?
A. 36.
Q. You were drinking beer that night weren’t you?
A. Yes.
Q. This wasn’t the first alcoholic drink in your life was it?
A. No.
Q. You have been drunk in your 36 years of life haven’t you?
A. Yes
Q. You know what it feels like when alcohol affects you don’t you?
A. Yes.
Q. So, on this occasion when you say a large quantity of vodka was added to your beer without your knowledge you must have recognized the signs of intoxication mustn’t you?

This is a very simplistic cross-examination but it should serve to give you an idea that even when a question seems irrelevant it may be leading to something more important.
Incidentally, there are all sorts of answers a witness might give in response to that final question, but many witnesses find themselves reaching that final question quite unexpectedly and become flustered, which renders their answer less than convincing.  We will talk more about that later.


After the other side has had their turn with you, your own lawyer has the opportunity to ask further questions that arise from those asked in cross-examination.  We cannot anticipate everything an opponent will throw at us; however, in most cases your solicitor should have anticipated the majority of the cross-examination and taken steps to undermine it when he first questioned you – if done correctly there should be no need for you to be re-examined.

Judicial examination

In theory, there is a stage at the end of the advocates’ questions where the judge can ask any question he or she has; however, in practice most judges will ask their questions as they think them up while the advocates are questioning you.
If the judge does ask you a question, it should be something to help her clarify your evidence – the judge should not ask attacking questions.

Being released

Once all the questions have been asked, the court will release you.
At this point, you are free to leave the building or stay and watch the rest of the case.

Achieving best evidence

Now that we’ve dealt with the procedure we will address the question of how you can present yourself to give the maximum effect to your words.

Getting dressed

We won’t drone on about fashion too much beyond saying that the dress code for court is smart.
Before you head to court, look at yourself in the mirror and ask whether you’d believe anything the person looking back at you said.  Would you buy a TV or a car from that person?  If the answer is “no” then you should probably get changed.
A smart appearance gives a sense of authority, respectability and believability from the start.  If you look like a stereotypical criminal, then expect the court to see you as one!
Being well dressed also gives people a feeling of confidence in themselves that carries over into your evidence.

How to answer questions

Ummm, er… I think it was kinda like this – be direct

Consider the following two transcripts of evidence:

Q. How do you know Mr Smith?
A. Well erm we were very close. I suppose he was probably like a big brother to me.
Q. What time did Mr Smith leave the pub?
A. I’d guess it was probably about midnight… er yes just about midnight?


Q. How do you know Mr Smith?
A. We are good friends, very close. He is like a big brother to me.
Q. What time did Mr Smith leave the pub?
A. Just after midnight.

There’s not much between them really except that in the second example the witness is more direct.  Two psychological experiments (O’Barr and Conley 1976; Erickson et al 1978) showed that when confronted with the direct answers jurors found that witness more believable.

Be powerful

A linguist called Lakoff, in 1975, provided a list of characteristics that were later used by O’Barr and Conley to test how use of language affected the opinion of a jury.  Some of the characteristics she highlighted as bad form were:
1.       Frequently using hedging statements such as “I think”, “it seems like”, “perhaps” and so on;
2.       Phrasing a statement as a question, for example, “I had one… maybe one and a half pints?”  When you ask a question, it’s normal for your voice to rise at the end of the sentence whereas when you make a statement your voice remains flat.  A rising intonation at the end of a statement makes it sound like a question and affects the weight placed on it by a jury;
3.       Repetition – if several questions have the same answer then repeat yourself, but that’s not what we mean here.  By repetition we are talking about the kind of repetition that makes you sound like you are trying to convince yourself, e.g. Q. “What time did Mr Smith leave the pub?” A. “I’d guess it was probably about midnight… er yes just about midnight?”; and
4.       Intensifiers.  Lakoff considered that words designed to intensify an answer were, in her opinion, characteristics of female speech, which she judged to be less powerful than male speech.  Irrespective of whether Lakoff was correct on the gender differences we have all heard people talk who sound as though they are trying to increase the importance of something – usually in respect of themselves.  In the 21st century people seem to use words such as “very”, “awesome”, “amazing” frequently so perhaps this is less of a concern nowadays.
O’Barr and Conley described speech using the Lakoff phrases as “powerless” and direct speech, which omits all of the above, as “powerful”.  More importantly, they found that men and women using “powerful” speech were seen as more competent, intelligent, likeable and believable.
As a witness who, presumably, wants to be seen as truthful being judged likeable, competent and intelligent is important because you are more likely to be perceived as confident and thus to be believed.  In fact, a study by Wall (1965) found that jurors tended to believe confident eyewitnesses 80% of the time EVEN WHEN THE WITNESS WAS WRONG!


This section has taken a long time to make a very simple point: answer the question you are being asked and do it with as few words as possible.
While remembering to answer the question fully, bear in mind that the less words you use the more direct and powerful your speech will be and the more likely you are to be believed.