Like the tide or the relentless ignorance of Iain Duncan Smith, the rhythm of certain recurring natural phenomena offers a comfort of certainty in an otherwise torrid and unpredictable world. One such inevitability was the reignition of the “Ched Evans row“, as media fiat demands it be termed. After several heady weeks in which almost all concerned abandoned calm and reason to soak in a pool of righteous, misinformed anger over cross examination of complainants on their sexual history and the meaning of the Court of Appeal ruling in Evans, there was a period after we all got out and dried off when tempers cooled and a serendipitous peace descended.

Ched Evans was a star player at Sheffield United.

It could never last. It was never intended to. That much was known when the government announced a review into the operation of section 41 of YJCEA – the legal provision setting out the limited circumstances in which evidence may be adduced or questions may be asked relating to previous sexual behaviour of a complainant in a sex case. We do not yet have the review, but yesterday nevertheless brought a pre-emptive legislative response, in the form of a Private Members’ Bill introduced by Plaid Cymru MP Liz Saville-Roberts.

The Bill, dubbed as a “Rape Shield”, has gathered attention since the weekend, as Ms Saville-Roberts trailed it across various media platforms. Explaining her premise, Ms Saville-Roberts wrote in The Times yesterday:

“So what’s the problem? It seems that rather than being invoked occasionally as originally intended section 41 is being over-ridden in courts to the degree that its effectiveness as a rape shield is weakening. This was thrown into sharp definition by the Ched Evans retrial. What was previously presumed to be a legal resort for extraordinary circumstances was presented as a successful defence strategy across the popular press and social media, which begs the question: from now on will every man charged with rape seize on this case as a get-out-of-jail-free card, and instruct his lawyers accordingly?”

Counting slowly to ten and fighting the urge to scream “THE ONLY PEOPLE PRESENTING THE CHED EVANS RULING “AS A SUCCESSFUL DEFENCE STRATEGY ACROSS THE POPULAR PRESS AND SOCIAL MEDIA” AND SUGGESTING THAT DEFENDANTS WILL UNIVERSALLY ADOPT IT AS A FORM OF PRECEDENT WERE NOT DEFENDANTS OR DEFENCE LAWYERS BUT YOU, THE MISINFORMED MOB RESISTANT TO THE STRONG LEGAL CONSENSUS THAT EVANS SET NO MEANINGFUL PRECEDENT”, I shall accept, for the sake of argument, the premise that section 41 is being too loosely interpreted by Crown Courts, and that judges are permitting lines of questioning that they shouldn’t. I will respectfully observe that Ms Saville-Roberts’ reliance upon an anecdotal “dossier of victims’ harrowing experiences” collected by charity Voice4Victims, as evidence for her proposition that section 41 is insufficiently restrictive, is a little unscientific – a complainant, who is not legally trained, was not present during the judge’s ruling on the section 41 application and has a personal stake in the case, is not best placed to impartially assess the objective lawfulness, relevance or propriety of the questions on sexual history – but let’s not refight old battles about what precedent Evans sets or whether section 41 is or is not being correctly applied. Let’s assume that Ms Saville-Roberts is right, and consider the Bill presented yesterday.

As a Private Members’ Bill at a first reading, we must allow for this being very much a first draft. But even so, it is of a standard, it has to be said, which my pupil supervisor would have merrily set alight with his cigarette lighter had I presented it to him as an example of my drafting. The first clause of the Sexual Offences (Amendment) Bill deals with the proposed “Rape Shield”, and reads as follows:

1. Restriction on evidence or questions about complainant’s sexual history

(NONE)In section 41 of the Youth Justice and Criminal Evidence Act 1999 after
subsection (1) there shall be inserted the following subsection―

(2) A Court in making a determination in respect of subsection (1) may
require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings nor should such matters be admissible as evidence
if the purpose is to undermine the credibility of the complainant unless
it would be manifestly unjust to treat them as inadmissible.”

That’s quite a mouthful. Let’s break it down. Subsection (1) of section 41 YJCEA 1999, as a brief reminder, provides the general rule that:

(1)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. 

The remainder of section 41 sets out the limited exceptions under which leave may be granted, namely the circumstances set out in subsections (3) and (5).

So the new subsection (2) presumably seeks to add a further compulsory qualification to the general circumstances in which the judge can give leave under (1). I say presumably, because it is in fact entirely unclear what the subsection is supposed to achieve. Having read it repeatedly, the only way to begin to analyse its intended effect is to look at it line by line. In so doing,  I shall refer to the proposed new subsection (2) as subsection (1A) (as it ought properly be), to avoid confusion with the existing subsection (2).

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve…”

Right from the off, we see that this isn’t a mandatory restriction at all. It simply affords the judge a discretion as to whether to apply the qualifications that follow. Which, if your complaint is that judges are presently not exercising their discretion in this area correctly, appears an odd solution.

As to exactly what type of questions the judge may prohibit, we’ll turn to the substance momentarily, but it assists to skip to the end to get an overview of the purpose. Doing so gives us:

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve [various matters] if the purpose is to undermine the credibility of the complainant.”

This gets to the nub of the (entirely proper) objection that Ms Saville-Roberts has to evidence of sexual behaviour being used to discredit complainants, this being one of the “twin myths” – (i) “promiscuous” women are less likely of belief, and (ii) are more likely to have consented to sexual intercourse – that section 41 was designed to combat. Firstly, given that this Bill is presented as the panacea to the “Ched Evans problem”, it bears constant repetition that the reason for the admission of the sexual history evidence in Evans had nothing whatsoever to do with attacking the complainant’s credibility. Secondly, the authors seem unaware that section 41 already has that exact prohibition in place:

(4)For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

Which rather makes (1A) otiose.

But what are the restrictions that the judge may apply? Well, s/he:

may require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings”

This is so broad as to defy definition. It covers quite literally “any matter appertaining to behaviour” – not just sexual behaviour. Quite what is meant by  “sexual history with any unrelated third parties” remains to be seen, no definition being offered, and a literal reading suggesting that evidence of incest would be admissible. The last line really tops it off – regardless of the nature of the complainant’s alleged behaviour either before or subsequent to the current proceedings – reading as an attempt to ban any question in any context. The incoherence is staggering.

Then we reach the final qualification:

“unless it would be manifestly unjust to treat [those matters] as inadmissible.”

The discretionary nature of this provision renders an “unless” clause utterly pointless, but in any event, it again adds nothing. Because there is already built into the existing subsection (2) of s.41, a requirement that leave should not be given under section 41 unless the court is satisfied “that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.” Much as the Court of Appeal enjoys a spot of sophistry, identifying a meaningful distinction between a decision that is “manifestly unjust” and one that merely “renders unsafe” the verdict would be a head-scratcher even for them.

The only conclusion one can draw, for this to have any meaning, is that the word “may” is an error, and that the author intended this provision as an imperative. In which case what you get is a mandatory restriction on asking the complainant any question on any aspect of behaviour – including lies, evasiveness or inconsistency – which may be designed to undermine their credibility. Faced with a false allegation, you would be prevented from challenging the credibility of your accuser in any way.

Put simply, the drafting of this Bill shows that no understanding of the law, or the principles behind section 41, has been attempted by its creators. It is knee-jerk to the point of hyperextension. Other comments by Ms Saville-Roberts, in which she mangles the reasoning of the Evans ruling, and even goes as far to suggest that section 41 as presently drafted is intended to exclude evidence of a complainant’s mental health, suggest that she, like many before her, has not taken the time to properly study the basics of her subject before rushing to legislate.

And I go into this tortuous detail because it exposes a deeper ignorance of our basic principles of justice, as demonstrated even more starkly in the next clause of the Bill, which seeks to impose a general ban on the police and CPS telling a defendant the name of their accuser, or other witnesses, in cases involving sex or violence, without the leave of a Crown Court judge (a proposal demolished by Nick Diable here). This is not a considered rebalancing of a finely-tuned and delicate ecosystem – it is an aggressive demolition of our common basic rights in the name of Doing Something to correct a problem which the architects don’t even understand.

I have no doubt that Ms Saville-Roberts and her sponsors are motivated by a genuine and noble desire to correct what they perceive to be cruel humiliation visited upon vulnerable complainants. But in so acting, they subscribe to a philosophy in which the court process is reimagined as a way of simply navigating our way smoothly to a conviction, safe in the certainty that if the defendant stands accused, it follows that he is guilty. In this model, it is of course rational that the minimisation of the complainant’s distress is the guiding principle, with the presumed guilty defendant’s interests an afterthought; worse, an inconvenience. A precondition of any reform of section 41 is sober analysis of the competing interests – defendant, complainant and state – and root principles of justice, before so much as a word of a new Bill is committed to paper. Otherwise we end up with Bills like this – well-intentioned, meaningless and potentially very dangerous indeed.

thesecretbarrister Bad Law, Lawsplaining, Politics , , , , ,

19 Replies

  1. This is that subject where you’re labelled as a rape apologist or someone that doesn’t believe in due process. It’s a very polarised issue and I tend to try and avoid it.

    The shift that appears to be coming has been developing for a long time. I first starting picking up on it with the Title IX / US campus debate.

    On one hand you have a massive undereporting of sexual assaults and on the other hand you a push from some quarters for increased desire for conviction at any cost.

    Low conviction rates is, to me, a reflection of the fact that many sexual assaults are one word against another. It is a genuinely difficult issue to prove ‘beyond reasonable doubt’ that the accused is lying.

    The view some commentators take is that the innocent going to prison is a price worth paying to convict the guilty that currently slip the net. But this is not the society we live in.

    Many of the proposed ideas that float around, such the Bill in the main post, are seemingly intended to disarm the accused of a defence.

    At the other end, some (almost exclusively) laugh at the idea of compulsory relationship classes at college (USA). The fact is that cases like the Ched Evans case show that people (both the accused and his army of twitter supporters) have a limited grasp of the law surrounding sexual assault and (in)appropriate (even if lawful) behaviour and where the lines cross. This sort of ‘soft’ response may be a better starting point.

  2. Odd how some people advocating victims’ rights (including some left-wing legal scholars) seem to have bought into the most unreflective sort of ‘law and order’ thinking when it comes to the police and their construction of cases (very effectively criticised by other left-wing legal scholars).

  3. “which my pupil supervisor would have merrily set alight with his cigarette lighter had I presented it to him as an example of my drafting”
    My fellow pupil’s supervisor gaily twisted such efforts into long tapers and used them on his pipe. Happy days.

  4. Surely what determines guilt or innocence is solid evidence? The credibility of the witness/victim is not what is being put on trial, the accused is. That is to say, the focus should be on whether there is evidence to prove that the accused is guilty of the alleged crime. Too often in cases of sexual assault, there is an over emphasis on the credibility of the victim, and too often, people falsely attribute things like the what a victim wears, and the extent to which a person remembers every detail accurately as relevant to establishing the credibility of a rape victim. Of course, the testimony of victims are crucial in determining whether a person is guilty of a crime or not, but unfortunately society’s attitudes towards victims of sexual assault mean that too often the credibility of a victim of sexual assault is unfairly undermined and attacked without a legitimate reason. Additionally, people’s understanding of consent is too often dangerous, misguided, misinformed and problematic, which makes it even worse for victims, and may be an exacerbating factor behind people’s over emphasis on the credibility of the victim in cases of sexual assault. This fact means that defence lawyers may be too eager to exploit people’s misguided understanding of consent and twist it to their client’s advantage unless there are clear statutory guidelines as to what factors are relevant in establishing consent and in considering the credibility of a victim/witness.
    I agree with the principle behind the Bill, even if there may be issues with the language.

    1. “The credibility of the witness/victim is not what is being put on trial, the accused is. ”

      Well, in the Ched Evans case, that was indeed how things stood. No one questioned the credibility of the alleged victim. There would have been no point, because she did not claim to have been raped. The sexual history evidence was admitted because it had a bearing on the credibility of Evans’ account of events, not that of the alleged victim.

    1. What is a “false rape allegation?”

      While such a thing may exist, courts are not the place where they are found out.

      In a legal system where only guilt must be proved, the lack of such proof can only lead to one conclusion, and that is that nothing at all is proved: neither guilt, nor innocence, nor falsehood and certainly not truth. I think the Secret Barrister has made this point at least once in the past.

      1. Goggins posted that 33% statistic on the Criminal Law Blog a while back and IIRC I asked him where it came from, without getting any particularly clear response. I can’t see how you could get it from court statistics. As you point out, it would be wrong to infer anything about the veracity of a witness allegation from the result of a trial, and even if you did, I can’t see how you would get a figure of 33%.

        I got the vague impression from the earlier exchange that Goggins was referring to “No Crime” figures from some particular police authority in some particular time. It would be wrong to draw inferences about false allegations from such figures – partly because “No Crime” decisions don’t mean what people seem to think they mean (and, in particular, don’t necessarily mean that a false allegation was made) and partly because, when you break “no crimes” down by region and offence, you often end up with numbers that are too small to draw any reasonable conclusions from.

        There has been a certain amount of research into false allegations, but most of it founders on the fairly obvious problem that, in most cases, there is no way of determining whether an allegation is false or not. All you can really do is count up the small number of cases in which you can be reasonably sure that an allegation was true, and the even smaller number where you can be reasonably sure that it was false, and then idly speculate about the much larger number of cases where you don’t know anything. The bottom line is that no one has the foggiest clue what percentage of allegations is false. It is not beyond the bounds of possibility that it is 33%, but you could say that about any number you pick out of a hat.

        Any way, I have indulged in a certain amount of speculation as to how Goggins got his 33% figure, which is probably a bit silly, given that the man himself is taking an active part in this conversation. So come on Ciaran, where does the figure come from.

  5. Since I can’t “reply” to Mr Goggins’ last comment, I’ll do it here. He makes a concrete claim of a definite quantity of “false rape allegations,” a point which I think is very, very difficult to substantiate, and certainly is not substantiated in court, for the reasons I’ve already indicated.

    It may or may not be “easy” to “falsely accuse” someone of rape; I have no idea. But once again, however you come up with the figure of 33% of accusations being (presumably deliberately) false, you can’t prove that with our legal process, where only guilt is subject to proof. The lack of a guilty verdict at the end of a trial proves absolutely nothing; certainly not that the accusation was false.

  6. There is nothing noble in depriving the wrongly accused of any means to challenge effectively the serious charges laid against them. Many people at various historical periods and in various countries have risked their lives to fight for, or to defend, fundamental values like the right to a fair charge. It is time to stop making excused for the rigid ideological bigots who are having increasing success in curtailing the rights of defendants. It is truly shameful that there is to serious campaign to prevent the limiting of the right of cross-examination to one pre-recorded session – which will in practice often be in conditions most unfavourable for the defence. And what happens when the judge is conviction-minded or biased in other ways and/or the defence lawyer is less than committed to representing his or her client or is incompetent? Just as there can me very vulnerable victims so there can be vulnerable innocent defendants.

    At the time of posting (so-called) Liberty has not opposed the latest proposed measure.

  7. Dear Mr Snooze, the 33% statistic came from HMIC 2016 and was specific to Lincolnshire constabulary. South Wales was 3%. Either there are ten times more rapists in the wolds or the folk of Cardiff are ten times less mendacious. Or it could be that a large number of “rapes” are buyers remorse.

    1. “Dear Mr Snooze, the 33% statistic came from HMIC 2016”

      You still haven’t given a specific reference for that claim, or said what it is that you are counting. I am guessing that you are counting “no crimes” (now known as “transferred or cancelled records”) and that the 33% figure actually relates to the year 2012/13. These are set out (along with comparable figures for 2015/16, and other years) here:

      If I am right in my assumption then there two problems with your argument. These are:

      (a) The actual numbers for Lincolnshire are simply too small to draw any meaningful conclusion. You mention in your post that there is a large discrepancy between the figures for Lincolnshire and those for other areas (at least when the figures are expressed as percentages). However it would be highly suspicious if you did not see very large discrepancies. Statistics for small populations will always vary widely, even if there is no underlying feature of the populations to cause them, and the only way that Lincolnshire could actually bring its figures into even approximate parity with those for other areas would be to fiddle them in some way or other!

      (b) As you will see, if you follow the link that I have posted, “no crimes” do not mean that no crime has taken place (hence the change of name). In fact the majority of “no crime” decisions in Lincolnshire appear to have been for administrative reasons (for example because they have worked out that responsibility dealing with the allegation can be offloaded to another authority).

      If your 33% figure comes from some other source then please give us a *precise* link to that source.

  8. Dear Mr. Goggins,

    You seem to have a rather odd habit of posting “replies” that address points that were not made in the comment that you are ostensibly replying to. However anyone who makes any confident statement about the percentage of allegations that are false has probably relinquished any right to be considered a “serious commentator”, because no one has a clue what percentage of allegations are false . It is perfectly possible that it is approximately 10%, or that it is approximately 33%, or that it is considerably smaller or considerably higher than either of those figures. Until someone invents a reliable crystal ball, no one will know. You do of course find that a lot of people – both feminists and “mens rights activists” – do make confident statements about the percentage of allegations that are false. However they always turn out to be measuring something else, and then passing it off as the percentage of allegations that are false, because that’s all you really can do.

  9. And incidentally, if what you were trying to say in your second sentence was that most incidents recorded as “no crimes” are false allegations, then please have a look at the document I linked to. In 2015/16 HMIC for the first time, separated “no crimes” (now called “transferred or cancelled reports”) into cases where verifiable information has been found to indicate that there really was no crime, and cases where, for a variety of perfectly sensible administrative reasons, a report has been removed from a police authority’s records despite the fact that there is no reason to doubt that a crime did take place (usually this is because the report is a duplicate another one, or because it falls under the remit of some other authority). The majority of “no crimes” fall into the second, administrative, category.

    1. I haven’t a clue what that was supposed to mean, and I usually find that when the conversation lapses into incomprehensibility it is best to call it a day, so I shall bid you a fond farewell.

  10. Some time ago I opined on ‘The Law West of Ealing Broadway’ that the onset of dual jeopardy was the thin end of the wedge, and that people who felt that the principles of justice were important should stand up at that point. This is what you get when you lose that battle….

    Most of the comments here miss the target completely. There is no point arguing points of law with a politician who is completely uninterested in law. For a long time now we have had a succession of leaders who have no principles beyond the acquisition of more power for themselves and their followers, and the hard-won tenets of civilisation are being lost as a result. Any statistician looking at what passes for Climate Change data will soon see that the fundamental axioms of Scientific and Mathematical enquiry are being ignored – any engineer looking at the push for renewable energy will wonder what happened to the Laws of Thermodynamics, and a doctor only needs to scan the pages of Retraction Watch to see that Medical Ethics are routinely set aside in favour of the publication of pet theories. Why should the Law be any different to these other professions?

    It is an appreciation of the fundamental benefits of principle that needs to be encouraged. Fighting piecemeal battles over individual injustices does not address the central issue.

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