Guest Post by Simon Myerson Q.C.: An alternative proposal concerning sexual offences and consent

In March 2017, Harriet Harman proposed a legislative amendment to section 41 of the Youth Justice and Criminal Evidence Act 1999, which would have the effect of prohibiting at criminal trials any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence. This week, Ms Harman reportedly confirmed that she was pursuing this amendment, and I provided my thoughts on why this is a dangerous and ill-thought out idea here

Back in March, criminal silk Simon Myerson Q.C. took the time to correspond with his MP, Anna Turley, over the planned amendment. He has very kindly permitted me to republish his note, in which he addresses the flaws in Harman’s Law, and offers his own proposal on how perceived shortcomings in the prosecution of sexual offences involving the issue of consent might be addressed. I understand that Anna Turley MP has yet to respond.

Simon Myerson Q.C.

Rape and Section 41 YJCEA 1999

Current Position

S41 Youth Justice and Criminal Evidence Act 1999:

  • Re consent, no cross-examination about Complainant’s (C’s) sexual behaviour without court’s permission.
  • Permission only if:
    • A conviction would otherwise be unsafe; and
    • Relates to behaviour at same time or is so similar that it cannot be explained as a coincidence; and
    • Must relate to a specific incident or incidents.

 

Suggested Amendment

To ban such evidence in all circumstances.

 

The Result of the Amendment

Necessarily, to ban evidence which might prevent an unsafe conviction. There is no way around this conclusion.

To remove from the judiciary the freedom to determine what makes a trial safe and to replace that freedom with a direction from the legislature that unsafe convictions are acceptable in rape cases.

 

The Problem

This should be self-evident. But it would create the additional problem that, in cases in which cross-examination would currently be allowed, were this amendment passed, the Judge would still be entitled to stop the case on the basis that the accused cannot have a fair trial. The Court has an inherent jurisdiction to do so, but is also constrained by Art 6 ECHR, which provides the right to a fair trial. The refusal to admit evidence that may mean the prosecution cannot prove its case is patently unfair.

 

The Reality

There are essentially 4 types of rape for these purposes:

  • Genuine ‘stranger rape’ where a woman is violently assaulted. Very rare and almost always result in conviction because consent rarely the issue.
  • Semi-stranger/friend rape. Typical scenario – meet on night out. Woman gives good evidence of not consenting. Again, relatively few problems in obtaining conviction.
  • As above but everyone drunk. See below.
  • Marital/relationship rape. Has difficulties but not really the focus because lack of consent proved by other factors – fighting, separation, confiding in family etc.

The real issue is the drunken night out. Can we leave aside political considerations here please? I have 4 daughters and I most assuredly tell them that rapists cause rape. I also tell them that the best way to avoid rape entirely is to take personal responsibility for themselves by staying relatively sober, texting regularly (family or friends), not leaving without telling someone and saying who with and not having sex unless they know the person.

What typically happens is that a group go out together. They all get drunk – so drunk that the next day they cannot remember what happened with any clarity. Frequently, one girl gets detached from the group. They do not know where she is and often do not look. She goes off with a man, consensually. That can be seen on CCTV. They go somewhere together and he has sex with her. The next day she is appalled. She may very well not have consented. She says she didn’t. She also says he tricked her into coming with him/has no idea who he was/didn’t want to be anywhere near him. The CCTV shows that at least some of that is wrong. She is cross-examined on the basis that a) she wants to get him into trouble to excuse her own shame and) she can’t remember anything, including giving consent. He says that she consented.

Another scenario: the group leave together with a group of lads, or some new lads they’ve met that evening. They go back to someone’s flat. Some kissing happens. Then a lad takes a girl into a bedroom. Same thing as above. The friends all remember the kissing. No one knows the rest of it, or they are so wasted they can’t remember.

That is the depressing reality. Of course, drunken consent is not consent. But the prosecution must make the jury sure that the man did not reasonably believe in the consent. He says he asked and she was all for it. If he is disbelieved, he is convicted. But it is terribly difficult for a jury to disbelieve him when the woman herself does not remember what happened. Q: “Is it possible that after a good evening, you may have said to him that you wanted sex, even though in the morning you would not have said yes?” If the answer is yes, it’s an acquittal. If the answer is no but the jury don’t believe it, it’s an acquittal.

 

Notable Point

S41 is nothing to do with this at all. S41 arises in a very small number of cases and is granted in even fewer. There is what purports to be as study carried out by a group appointed by Vera Baird. I’ve read those cases. There are 15 – a tiny fraction of rape cases and far too small to be anything more than an anecdotal collection. Of those 15 only 3 involved S41 applications. I would only have granted 1. S41 is not the problem.

S41 is important because it guards an accused – who we remind ourselves is an innocent man until convicted (I always find it helps to think of him as my father) – who describes behaviour that is so exceptional that the evidence of C that she did not consent, should properly be assessed against the evidence that she indulged in the same behaviour on an occasion when she did consent. The argument is that if she consented on that occasion, isn’t that evidence that she consented on this occasion. It is an argument, no more. The jury can reject it. But the evidence is admitted if the Judge decides they could accept it and that, in those circumstances, if they did not know about it, they may not be making a fair decision.

In the Evans case, the evidence was admissible because a) it was an account from 2 people on separate occasions each other and the accused that C was capable of having sex when very drunk; and b) that she was an active participant using the v precise words and positions described by the accused. That went both to the issue of whether this was non-consensual at all (C had never said so – merely that she did not remember), and whether the accused might reasonably have believed in consent if so.

Without that evidence Evans was convicted. With it, he was acquitted. What Harriet Harman seeks to do is to preserve the position where someone is convicted, even though the evidence might lead to acquittal. She wishes to do that by preventing the jury even hearing that evidence, because she has decided it is wrong to let them do so. That is neither her job, nor remotely appropriate.

 

The Bad Arguments

Why should the current position be changed? There is no evidence that it results in unfairness on the current law as it stands. Research shows that juries do understand the evidence they hear and the directions the judge provides.

Thus the arguments should focus on the law. Is the offence of rape sufficient to include occasions where a lack of consent cannot be proved, but the way in which the man has behaved plainly takes advantage of the woman’s position at the time?

However, Harriet Harman’s argument does not focus on the law. It focuses on manipulating the current procedure so as to alter the result. Once we permit politicians to prevent the admission of evidence because the evidence produces the ‘wrong’ result, we will not be able to resist it happening again. Ask yourself, what would Farage do with such a provision and alleged Islamic terrorism? Should we refuse to permit juries to hear evidence that bankers had seen senior figures doing the same things as had led them to be charged with dishonesty, and had thus concluded it was not dishonest? Evidence such as this is not a defence unless the jury accepts it. If it is rejected the conviction is fair. But a conviction that does not allow a jury to hear that evidence is unfair.

Moreover, the basis of the argument rests on the belief that jury verdicts are regularly ‘wrong’ and the procedure should thus be tampered with, to achieve the ‘right’ result. That is neither healthy nor proved. We assume that once delivered, jury verdicts are correct, unless the summing up is wrong. The jury’s deliberations are sacrosanct. How on earth is it possible to assume they are wrong?

And, if they are wrong, then the logical answer is to have trial without jury. Fiddling with the procedure, if juries do not get it right, is hardly a courageous answer. Rather, it is a fudge, which imperils rape victims because it still leaves them open to injustice, and everyone else – either for the same reason or because it encourages executive action to restrict the evidence a jury can hear.

 

A Possible Solution

In reality, juries probably get these decisions right. The difficulty is that we have a crime in relation to which the prosecution must prove the negative – that the accused did not reasonably believe C consented.  

A further difficulty may be that sentences for rape are very high. Many lawyers believe (admittedly on no very good evidence) that this makes juries even more reluctant to convict. Or, perhaps, it means they take being ‘sure’ very seriously.

An answer is an offence that takes consent away.

Taking sexual advantage is a possible offence in this way:

A man (M) commits an offence if he penetrates another person (using the existing language of the Sexual Offences Act 2003) in circumstances in which, whether that other person has indicated consent or not, a reasonable observer would conclude that M could not be sure that consent was either voluntary or informed, and that M took no reasonable steps to ascertain the real position.  

I do not pretend this is necessarily flameproof as it stands, and it certainly needs further thought. But it represents a real attempt to transfer the risk of drunken stupidity to the penetrator not the penetratee. It would be mitigation that the man had believed the woman had appeared to consent but it would not be a defence unless M was sure that there was consent having taken reasonable steps to check. If the woman can’t say yes, or says yes because of drink, or isn’t sure what happened, that would all be sufficient to convict. The sentence would, necessarily, be less. The conviction rate would, I believe, soar.

 

Simon Myerson Q.C. practises from St Paul’s Chambers, Leeds and Byrom Street, Manchester, and specialises in Civil and Criminal Law. He is currently representing 40,000 Kenyans in their claim against the Foreign Office relating to events during the Mau Mau Emergency in the 1950s. Simon tweets at @SCynic1.

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Guest Post by CrimeGirl: The fallacy of the fat cat legal aid lawyer

In the coming months, the tabloid “fat cat legal aid lawyer” staples are likely to re-emerge and recur with a vengeance, following the Ministry of Justice’s plans to slash legal aid fees paid to criminal law solicitors. In the din of misinformation that will be honked out by the MoJ to distract from the legal profession’s concerns, the truth may become estranged. This could have devastating consequences. If you are wrongly accused of a crime, your guiding light will most likely be a legal aid solicitor. Their importance to the functioning of our justice system is shamefully overlooked and underreported.

The Secret Barrister is delighted to publish this exclusive guest post by barrister, former duty solicitor and fellow anonymous legal commentator, CrimeGirl, who explains the reality of life for solicitors on legal aid.

 

@DefenceGirl

@CrimeGirl

One of the basic tenets of the Criminal Justice System in England and Wales is that every person being interviewed under caution by the police, no matter how rich or poor, is entitled to free and impartial legal advice.  As I used to tell my clients, even Richard Branson is entitled to free representation in the police station.

For each case the Legal Aid Agency pays the lawyer a fixed fee.  Those fees vary for some nonsensical reason depending on the location of the police station (or nearest police station).   When cases are not prosecuted, the case ends there, with that fixed fee.   On average it is circa £170.  That is all the firm receives for the totality of the work they put in.  For every police station lawyer working today, there will be numerous cases every week that are resolved by way of an ‘out of Court disposal’ such as a caution, or are dropped altogether.  Preventing charge in an appropriate way is an extremely positive result for the client and something that I took great delight in achieving.

Year on year, the number of arrests has dropped.  You will see this spun in the news as “crime falling”.  Be assured that crime is certainly not falling.  The number of individual criminal acts is not accurately reflected by the way those acts are recorded.  Custody stations across the country have seen greater than 30% reductions in footfall following a concerted effort by forces to achieve fixed targets.  The knock-on effect of this alone has been devastating for Solicitors and Barristers alike.

On top of that, a sizeable chunk of cases end at the police station.  Each case that resolves without charge culminates after its own hefty workload.  Children falsely accused of serious offences, removed from school, where Solicitors have intervened with the investigation on numerous occasions.  Countless vulnerable adults arrested for offences never capable of being made out on the available evidence, necessitating solicitors to attend the police station on multiple occasions, and who call their solicitors no less than thirty times over the months their cases go on.  Lengthy letters to custody sergeants and inspectors protesting length of bail and onerous bail conditions, threatening more formal legal action if they are not amended or relaxed.

Some of those files will comprise detailed reviews of statute and Court of Appeal or Supreme Court cases, lengthy letters to senior officers raising complaints, representations on points of law, or letters to other Solicitors requesting assistance in ancillary legal challenges.  Others will contain identity procedure attendance notes, multiple pages of written disclosure, defence witness statements and documents provided by the client to assist in preparing their defence.  They will include correspondence from employers, divorce paperwork and screenshots or emails from former partners, all of which need to be considered in detail so that the client can be advised whether or not the contents needed to be disclosed to the police in order to bring about a faster resolution to the investigation.

How much are Solicitors paid for all of this work?

Having worked for or on behalf of many differently sized firms with legal aid contracts, I can confidently say that all clients are defended robustly with a view to fending off a potential prosecution.  Every file attracts that paltry £170 I referred to above.  That £170* covers at best two hours of work, three letters and four or five phone calls.  It is the norm however for it to become a huge financial hole, representing a considerable overall loss in terms of spent fee earner’s working hours, calls and correspondence.

It bears repeating.  Every police station attendance is now considered a ‘loss leader’.  It is hoped  that remuneration may  occur in the future, either the client will be charged or if the best possible result happens and charge is avoided, one hopes, a word of mouth recommendation through excellent client care will materialise.

How can criminal defence solicitors survive in these circumstances?

The only way that firms or criminal departments have stayed solvent without taking on privately paid work is due to larger Crown Court litigator fees.  Each case that results in charge attracts funding under a representation order payable on a fixed fee basis, and when those cases are larger and more complex, (such as cases with lots of defendants at the Crown Court) that fixed fee rises.  When there is a huge amount of evidence for lawyers to read (more than 10,000 pages) the fee rises significantly.  That does not mean that those cases are ‘well paid’.  Let us not become distracted by the fallacy that any publicly funded criminal work is properly remunerated.  It is not an argument that is worth repeating here.  Larger litigator fee cases come closer to properly remunerating those who conduct them, than the smaller cases do, while remaining in stark and depressing contrast to remuneration available in any other area of law involving the same volume of work.

Those large cases are rare.  They come around infrequently and when they do arrive, Crown Court Judges have become accustomed to splitting large groups of defendants into smaller cases and putting pressure on defendants to plead guilty early, before evidence is served, with promises of sentence discounts. That cutting, pressure and re-organising reduces the financial value of the cases significantly.

The government is now proposing to reduce the amount of money it is willing to pay Solicitors and Barristers for those higher page count, more complicated cases.  No proper justification has been offered for doing this.  Lawyers still need to read every page of evidence in every case.  Failing to do so is negligent.  Relying on automatic computer processes to read evidence ignores the fact that documents are frequently hand-written and scanned, and omits the chance for human error in typing the evidence prior to service.  I say it again, failing to read every page is negligent.

The losses sustained by Solicitors at the police station and in the Magistrates’ Courts, and by Barristers  who fall into a loss by properly preparing poorly paid Crown Court cases are not properly balanced by the larger cases.  All cases should be remunerated fairly.  However, those larger cases go a way towards keeping firms and Barristers afloat financially.  The criminal justice system has already been slashed to the bone.  Police station fees have been reduced.  Magistrates’ Court fees have been cut.  Crown Court fees have been lowered.  Less people are being arrested.  All this after no rise in almost two decades, despite vastly increased living and business costs.  So many individual cases are routinely being driven into losses that criminal lawyers’ (particularly at the more junior end) are now very poorly remunerated.

Trainee Solicitors in crime can expect to earn between minimum wage and £18,000 a year.  When they qualify they can expect little over £24,000 nationwide.  Solicitors with up to seven years post qualification experience can expect to earn up to £32,000 a year, and all this comes bearing huge student debt and bank loans to fund their qualifications.  Paralegals are routinely paid between £13,000 and £20,000.  Even the most passionate believers in justice are deterred.

Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future.  It is our children and the most vulnerable people in our communities who will suffer.  With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely.

As a law abiding tax payer you might think legal aid is an unnecessary expenditure, you never know when you might need it. No one plans to be falsely accused of a crime – just as no one plans to be a victim.

*Save for those that attract the “escape fee”.  Escape fees require many hours of attendance at the police station by the Solicitor in interview and equate to circa 4 x the standard fee.  These are rare, occurring only in complex and serious indictable only offences and almost always result in a positive charging decision. (I think it requires more than twelve hours and remember that you still aren’t remunerated for every hour you spend there).

You can (and should) follow CrimeGirl on Twitter at @CrimeGirl.