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.

Fantastic Dr Fox may be not guilty, but he’s also far from vindicated

As Robert Duvall didn’t quite say, I love the smell of an acquittal in the morning. Nothing else in the world smells like that. Granted, I’ve only enjoyed the olfactory pleasure vicariously, but as a barrister there are few feelings as gratifying as taking the fight to the state on behalf of a client and walking out of court with the prosecution’s nads dangling from your triumphantly raised fist.

While his acquittal came late on a Monday afternoon, there’s no doubt that DJ Neil “Dr” Fox knows what I mean. I say there’s no doubt because he has told us as much. In the vogue du jour, no sooner was the case concluded and the not guilty verdicts entered than Fantastic Dr Fox was perching on the court steps and addressing the grunting press pack.

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The usual sentiments were all there. Pleased and relieved. Thank you to my legal team. Friends and family who stood by me. Yada yada yada. And then he went one further. And said this:

“I strenuously denied all the allegations. I have been vindicated”. He followed this up with what might be interpreted as a gossamer-veiled threat: “A lot has been said and written about me that needs to be addressed and rectified.”

You’ll have heard all this before; we’ve seen it repeatedly over the past few years where celebs of yore have been acquitted of serious sexual allegations. The trajectory is the same – the CPS is roundly booed for its Salem/McCarthyite proclivities by the acquitted sleb, Paul Gambaccini is wheeled out on the radio to deplore the gullibility of the prosecution agencies and, finally, social media gets involved to hail the acquittal as calcified proof that the complainants were malicious, lying, celeb-baiting, compo-hunting fantasists of the very worst kind.

Well let’s pause there.

Because what is unusual in this case is that, due to Mr Fox having elected to be tried in the magistrates’ court, rather than the Crown Court by a jury, we have a full written judgment in which the bench, chaired by the Chief Magistrate Howard Riddle, explain in detail their findings.

And if I were Dr Fox’s media advisor, I’d suggest he perhaps temper his public declaration of vindication before he ends up looking about as clever as when he was persuaded to draw a genetic equivalence between paedophiles and shellfish.

Because while there is reason to question the vim and vigour with which the police and CPS pursue certain types of allegations – the manner in which the Exaro saga has unfolded is a particularly unedifying case in point – as far as Dr Fox is concerned, it is plain that the allegations against him were anything other than malicious. Far from it – the court took the time to emphasise, repeatedly, their belief in the accounts of the complainants, and concluded that, in respect of a number of the charges, they were sure that Neil Fox had acted in the way alleged. The acquittals arose largely because, given the passage of time, the court could not be sure of the precise context of the acts, and therefore whether they amounted to “indecent” or “sexual” within the meaning of the relevant legislation.

I shan’t rehearse the judgment in full. But I would urge that you read it. The reasoning is in places somewhat tortuous, but this is not a case where, on any of the charges, the complainant was disbelieved. The converse in in fact was true – on most charges the court rejected Neil Fox’s evidence that the incidents never happened, on one of the charges stating that they were “sure that Mr Fox has lied to us”.

“We heard evidence about 10 allegations from six women. We believed each of the complainants. The question we must ask is whether we are sure of the facts alleged, sure of the context in which they occurred, and sure that they amount to criminal offences.

[…]

In the case of the most recent allegation, we are sure it happened but are not sure that it amounts to the criminal offence of sexual touching. In the other cases, we either cannot be sure the incident occurred as described, or we cannot be sure that in the context it was a criminal offence, namely indecent assault, or in one case sexual touching.

This is not to go back on our original assessment that we believed the witnesses and accept that they had attended to tell us the truth as they remember it. Nor should this verdict be taken as a criticism of the decision to bring this prosecution. It was a strong case and one that needed to be brought to the court for determination.”

In short, the court was sure “that his behaviour on some occasions crossed the line of acceptable behaviour”. On charge 3, the court was sure that he had grabbed the complainant’s breasts, causing pain and distress, albeit the motivation may have been “a joke in poor taste” or “bullying” rather than sexual. On charge 5, he simulated sex with a female co-worker, causing her to feel distressed, belittled and humiliated. Ditto charge 7. On charge 8 he kissed the complainant against her will. It was just that, for the reasons set out at length, the court was not sure that these acts in context were sufficient to found convictions for indecent or sexual assaults.

So remember this when Foxy declares: “I have been vindicated”, because it’s a peculiar kind of vindication. A sort of, “The court was sure that the allegation that I denied on oath was true. BUT it couldn’t be sure that my grabbing the boob of that lady was “indecent” within the meaning of s.14(1) and Schedule 2 of the Sexual Offence Act 1956. So there, suckers.  Pure, sweet vindication.”

I don’t seek to rain on Dr Fox’s chips. He has been acquitted of sexual offences, and no doubt that, to him, is the top and bottom line. But we have here, unlike in inscrutable jury trials, the benefit of a nuanced judgment setting out the findings of fact. And if the Doctor is to embark upon a series of media interviews in which these acquittals are used as sticks to beat the CPS or to suggest that the complainants were liars, I shall be here, quietly beating my drum to remind whoever will listen that, while Mr Fox is not guilty, a criminal court found beyond reasonable doubt that he had touched a series of women, without their consent, in a way that caused them some considerable distress. And that, most importantly, this was a case that, as the court itself held, it was entirely proper to bring.