It was the government of the supposedly illiberal and hard-nosed Margaret Thatcher that brought in the Police and Criminal Evidence Act. It regulated the detention of suspects in police cells, brought in procedures for identity parades and made it possible for solicitors to be present at their clients’ interviews. So much of what was brought in then is now taken for granted, but gradually over the years I have seen the safeguards for defendants in court being eroded. My experience has been in police stations and courts in England, but the trends may be observed in other parts of the English-speaking world, and nowhere is the retreat from the presumption of innocence so noticeable as in cases involving sexual offences.
In the world in which I grew up young ladies did not go into pubs on their own. Likewise they did not go to clubs and drink to the small hours while looking around for a male to latch on to. If you did drink, it would be cider, and in half-pints only, or shandy, a ghastly mixture of beer and lemonade. A young man would hesitate and have to pluck up courage to ask a girl out. She would not be expecting a kiss on her first date. The contraceptive pill was not widely available. Sex before marriage was secretive. Living together as an unmarried couple was often hidden from the couple’s parents, and if the parents did know, they were not likely to be broadcasting the information round their friends and families. Casual sex with a stranger was rare.
That world has gone. For better or worse, moral standards have changed. The contraceptive pill is partly to blame. No longer can a woman use the fear of pregnancy as a barrier to sexual intimacy. Thus it is more difficult to be sure whether an allegation of rape or sexual assault is true or not. Such cases have always been difficult to prosecute, depending as they do so much on assessing the word of the complainant against the word of the defendant. Until 1994, according to English law, in order to start a prosecution it was necessary for there to be corroboration. This sensible requirement has now been abolished. In practice, a jury may well be looking for assistance in reaching a verdict from physical evidence but a prosecution can be brought on the uncorroborated account of the “victim”.
There has been a panic over prosecutions for sexual offences. Politicians looking to appease feminists will often inveigh against the “weak prosecutions” and point to the rate of failure of such cases. I have never heard any leading politician point out the need for caution in launching prosecutions or the need to preserve the presumption of innocence until proved guilty. Prosecutors in court will describe the complainant always as the “victim”, thereby giving the appearance of deciding what should be left to the jury to decide. We know the person giving evidence is complaining; we do not know whether she is a “victim” until she has given her evidence and been through cross-examination and the defendant has given his own account of what happened.
An experienced crown prosecutor can decide whether or not to prosecute for murder, causing death by dangerous driving, drug conspiracies and a whole range of other serious cases. But in order to decide not to prosecute for rape there have to be two prosecutors making the decision, and both must be of a certain level of experience. What, one wonders, is so special about rape?
I am, of course, not concerned with the cases that are truly horrendous, cases in which there is evidence of appalling perversions, in which the victim is truly a victim and has been subjected to the most frightening ordeal. But I am concerned with the cases in which a man—it is usually a man—has been kept on police bail for months and months, having to report to the police on whatever dates he is given with no idea of when someone is going to make a decision about whether to prosecute, and when he is finally told there will be “no further action” he has no redress whatsoever for all the distress he and possibly also his family have been caused. The woman may have retracted what she said but she is not even going to be cautioned for making what is obviously a false complaint. After months of anxiety the decision may simply be “no further action” and no one is going to ask any questions of the accuser. The police, if they announce anything at all, are likely to say “there is insufficient evidence to prosecute”, which does not clear the suspect’s name. The woman making the accusation is protected: it is unlawful to reveal her name in the media. The accused has no protection whatsoever, and indeed the police may have made the accusation as public as they can “to encourage other victims to come forward”. They may have trawled through his former girlfriends in search of other complaints, hoping perhaps to bolster a weak case by adding other accusations. Where the man is wealthy there is the incentive of possible compensation to encourage exaggerated accounts of trivial encounters. Where he has no money, there is still the prospect of compensation from the Criminal Injuries Compensation Board.
There is a particular problem with “historic rape cases”, those cases where the incident is said to have happened many years ago. Trying to draft an indictment in such cases can be very difficult because an adult complainant may be quite unable to say even in which year something occurred. The defendant is unable to prepare a proper defence because of the passage of time. There will be no forensic evidence. He is deprived of being able to prove his innocence by giving DNA samples. Evidence of alleged injuries is not available. He cannot remember what he was doing at the time of an alleged incident. If someone asked him what he was doing last Friday, he would be able to find witnesses to his whereabouts, but if someone is talking about twenty years ago defending himself is nearly impossible. In the past no one would have tried to run a case concerning a very old accusation: now there has been so much hysteria, particularly after the discovery of the numerous child sex attacks carried out by Jimmy Savile, a popular broadcaster and comedian, that a person accused of a sex crime, particularly anything involving children, is now in effect guilty until proved innocent.
Decisions to prosecute old men are particularly difficult to justify. A client of mine is serving a lengthy prison sentence. He is also suffering from a terminal illness, and the medical evidence that the condition is terminal is quite unequivocal. Yet the Crown Prosecution Service insisted on trying to prosecute him for old offences going back to 1994. Only after a year of dithering did they finally accept that they were never going to succeed in running any sort of trial with a defendant who would be unable to follow the proceedings. There was quite simply no point in wasting public money on such a case.
The Crown Prosecution Service should decide what it is for. Is it, in the words of the Book of Common Prayer, “for the punishment of wickedness and vice” or is it for providing closure for “victims” and being seen to make pious noises about sex cases? Quite simply, when a court can do nothing significant to a defendant, even if he is convicted, what purpose does a trial serve? We have in the UK a special inquiry into child abuse in progress. The inquiry is now on its fourth chairman, Professor Alexis Jay. The last chairman, the New Zealand judge Lowell Goddard, resigned after just a few months—there are rumours that she was pushed. The inquiry was to hear factual evidence from “survivors” with no opportunity given for any cross-examination by those accused. Critics complain that it will be a kangaroo court with findings of fact made about those who are unable to defend themselves. Even where a person accused is dead, such as Lord Janner, the effect on the accused’s family is likely to be severe. Those accused have no anonymity; those making the accusations are shielded from any scrutiny.
Over the years governments have sought to load the dice against defendants in sex cases. The “victim” can give her evidence (and yes, I know victims can be male) through a video link. Her account can be recorded in advance under relatively stress-free conditions, with no challenging questions from the specially trained officers interviewing her, and the recording played to the court before she can be cross-examined. Since Section 41 of the Youth Justice and Criminal Evidence Act 1999 came into force, she may not be asked any questions about her sexual behaviour, even previous sexual behaviour with the defendant, without the leave of the judge, and such leave is not easily obtained. A couple may have been in a consensual relationship over a period of years but the defendant’s counsel is not allowed to bring this to the jury’s attention. If the defendant is fortunate, the prosecutor when opening the case will put the incident into some sort of context, but unless there is some feature of the previous sexual contact which satisfies the strict conditions laid down in the statute no questions can be asked. If this section were enforced rigidly, there would be some very unfair trials indeed. It is quite simply daft to assume that where there has been a close relationship between two people that is not a factor which should be considered. Yet fanatical feminists would have us believe that any previous or existing relationship between the two people is irrelevant. There are even attempts to insist that any questions for the “victim” be written down in advance.
In the Apocrypha, the story of Susanna and the Elders contains what may be the first recorded example of a successful cross-examination. Susanna was the virtuous wife of a Jewish leader. Lustful elders attempted to seduce her when she was bathing, and when she refused their advances they made a malicious allegation that she had been unchaste. Daniel insisted on cross-examining them separately and found that they gave conflicting accounts.
There have to be ambushes in court cases. Witnesses have to be asked unexpected questions and they must not be able to confer. Yet since the implementation of the Criminal Justice Act 2003 a defendant has been obliged to produce a defence statement setting out what he has to say in response to a criminal charge and if any detail of his defence has been omitted, the prosecution and the judge will comment and invite the jury to consider that he may be lying. If he is calling witnesses to his defence, their details must be given in advance together with their addresses and phone numbers, although if the prosecutor wants to know if a person has previous convictions this can these days usually be obtained swiftly through the police computer. It used to be a matter of concern if prosecution witnesses were made aware of what they were likely to be asked. Nowadays no one seems troubled by people being put on notice of the nature of a defence.
In criminal cases generally the judges now attempt to “manage” cases. One deplorable tendency, even in crown court trials, is to attempt to reduce a defendant’s interview to a mere summary. Some people have forgotten why taped interviews were introduced in the first place. There is a curious resistance to letting the jury hear the defendant being interviewed. The interview of the “victim” giving her account of what happened will routinely be played: the defendant’s account to the police is not always given in full. Sometimes it is important to know how a question has been asked and the tone in which it has been answered. Before any interview the suspect will have the caution put to him—“You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.” Suspects believe that this means that anything they say will be used in evidence. I once sat in on an interview where the police officer began by saying, “Now there’s been a lot of misunderstandings about these tapes … Did you think they get played in court? Well, they don’t. I write out a summary and you and I can agree what goes into the summary …”
Rape can be a terrible crime, an offence of violence involving humiliation of the victim. Prison sentences are justifiably severe. But that is no excuse for removing the presumption of innocence. The safeguards for police interviews were brought in back in the days of Margaret Thatcher’s government for very good reasons. Cross-examination of rape “victims” should be conducted in a civilised way, but it must be thorough, and the defence should not be compelled to reveal every aspect of their case and thereby allow the prosecution to make witnesses aware of what is to be asked. The trial should be a search for the truth, not an exercise in agreeing on as much of the evidence as possible. False allegations are sometimes made, whatever furious feminists may say, and we should not be impelled by the din of their anger into removing the safeguards within our justice system for those who have been unjustly accused.
Jan Davies has been engaged in advocacy in the English criminal courts for over thirty years. From 2001 to 2007 she was a senior crown prosecutor in Oxfordshire. She is the author of The Criminal Advocate’s Survival Guide and Criminal Justice under Siege