2011 Review: Perverting Justice

By Robert Whiston

Quote: “On 16 December 2010 Keir Starmer QC, Director of Public Prosecutions (DPP), announced a series of measures to strengthen rape prosecutions. One of the key elements was to seek the views of interested parties about the factors the Crown Prosecution Service should consider before charging a person involved in rape or domestic violence allegations with an offence of perverting the course of justice.

We [ the CPS ] have drafted Interim Guidance designed to assist prosecutors making decisions in this type of case. We want to know what you think about it.”

(Further details can be found at: http://www.cps.gov.uk/consultations/pcj_index.html).

 

Background to Perverting the Course of Justice reveiw:-

The  questions posed by the  Interim Guidance reveiw were triggered by a “double retraction” case. The sequence of events were as follows:

  1. A 28 year old mother made a rape allegation against her violent [but estranged] husband in 2010 and then retracted it. It is unclear from reports whether he stood trial or not and whether he was cleared.
  2. She was prosecuted for PCJ (Perverting the Course of Justice) and sentenced to a number of months in jail because she admitted fabrication and/or had retracted her allegation
  3. She then pleaded that her retraction was, in fact,  false and had been coerced (this represented a second or double retraction). Lawyers and barristers then queued up to represent her free of charge at her appeal
  4. She maintained that her first allegation of rape was truthful but her retraction was made under duress and she now wished to retract her 1st retraction and assert that her 1st allegation of rape was, indeed, truthful

The same Sept to Dec 2010 period saw another rape case in south London where allegedly the CPS “made a serious mistake in offering no evidence at a retrial.” A commentary on this South London case can be read at the Guardian, Sept 23rd 2010 (http://www.guardian.co.uk/commentisfree/2010/sep/23/no-wonder-rapists-.walk?INTCMP=SRCH). It involves rape allegations from 2006 and of the woman’s male friends who were unwilling to bear witness to her version of events.

Excessive drug and alcoholic drink consumption by the “victim” also featured as the prelue to this allegation of rape (see on this site “Of Sterner Stuff”).

The woman, who prejudiced an expensive CPS case by disclosing in court information that she should not have revealed, namely, the accused was currently in prison, was nonetheless awarded damages of £16,000 in a, quote, “landmark legal settlement”  (http://www.guardian.co.uk/law/2010/sep/20/dpp-apologises-woman-courts).

By the time Dec 2010 arrived Keir Starmer, the DPP (who is responsible for the CPS), was facing hostility for both the South London case and the 28 year-old mother from Wales. To allay fears and head off pressure groups he wrote an article for the Guardian entitled “Rape: justice will be done” in which he promised to improve how prosecutions were handled, plus announced the launch of a review.

Even Starmer’s headline is prejudicial to those who might one day be innocently accused of rape. So enthralled are ministers and officials that it causes them no pangs of conscious or concern to have to cow tow and humbly concede to female pressure groups that:

  • ‘In one [ case ] we made a serious mistake in offering no evidence at a retrial.’
  • ‘I publicly apologised to the victim.’ 

These concessions lead to the Review of Feb 2011 (CPS Interim Guidance). [1] The questions posed by the Review were 5 in number:-

  1. Is the description of perverting the course of justice clear?
  2. Do the observations on the evidential stage of the Full Code Test clearly set out the issues we should address when deciding whether there is sufficient evidence to justify a prosecution? If not, please suggest how this could be achieved.
  3. Does the section on the public interest stage of the Full Code Test clearly set out factors which we should consider when deciding whether it is in the public interest to prosecute? If not, please suggest how this could be achieved.
  4. Have we provided sufficient explanation of what we mean by “double retraction” and are the factors to be considered in such cases clearly set out ? If not, please suggest how this could be achieved ?
  5. Any other comments about the document ?

These questions can be found at: http://www.cps.gov.uk/consultations/pcj_index.html

Double Retraction

Under ‘Observations on the evidential stage of the Full Code Test’, CPS staff are advised that:

  • “A person who deliberately makes a false allegation in the knowledge that there is a risk that the police will conduct an investigation may be guilty of perverting the course of justice.”

However, to do that the prosecution (CPS) must prove that the allegation was in fact false. Can the CPS spare the resources for every occassion ? It is doubtful. The CPS is unlikely that a charge of perverting the course of justice will be brought when “. . . there is any question as to whether the original allegation might in fact have been true.”

‘Might’ have been true – what kind of measure is that ?

Many rape (and domestic violence) cases hinge on one person’s word against another’s. Where this is the case, the CPS advises, that if the complainant retracts his / her allegation, it should not be assumed that the original allegation was made with the intention of perverting the course of justice (which leave one wondering what the real intention must have been).

It follows that:  

  • Where the complainant no longer wishes to support a prosecution but maintains that the allegation is in fact true, this is unlikely to be sufficient in itself to found a case for perverting the course of justice.”

In order to prosecute the person making the false aleation the CPS advises that:

  • “ . .  additional evidence will be needed which is capable of establishing that the original allegation was false.”

Unseemly Rush

The case involving the 28 year old Welsh mother has another twist in its tail. Reportedly professor Susan Edwards, a supposed leading authority on domestic violence, had offered to act as an expert witness. Tragically, professor Susan Edwards can’t even be relied upon to count straight. In Jan 1995 The Sunday Times ran an exposee of domestic violence number manipulation and she was named as the culprit. Quote:

  • “The research upon which the Met [police] depended was conducted by a feminist criminologist, Dr Susan M Edwards. The figure she had actually given, in the London Policing Study, was more than double the number supplied by the Met.”

Policy for Prosecuting Cases of Rape

The CPS website gives access to a variety of their publications and policy statements. The following URL gives access to most of these publications and policies http://www.cps.gov.uk/consultations/pcj_consultation.html

Going through the above links one comes to “Policy for Prosecuting Cases of Rape” which is a rather one sided approach to the real dilemmas that rape cases can present (see http://www.cps.gov.uk/publications/prosecution/rape.html).

For instance, the text concedes that prior to the 2003 reforms ‘consent’ (the cornerstone of any rape trial) was taken as the ordinary use of the word consent (Para 2 [2] ).

The complications and confusions we predicted in 2000 would follow from the Home Office’s insistence on its particular form of words has been proven correct. After the 2003 Act, consent had to be ‘reasonable’, ‘on-going’ and include demonstrable steps taken to show consent was sought:

  • “ . . . the defendant [ is required ] to show that his belief in consent was reasonable. In deciding whether the belief of the defendant was reasonable, a jury must have regard to all the circumstances, including any steps he has taken to ascertain whether the victim consented.”

The absurd situation is thereby created where a married man, to protect his interests (and given that legal changes mean that spousal rape is now a possibility), would need to seek nightly permission to engage in sexual activity with his wife and for that activity to be duly noted down and countersigned (see Para 2.[5] “a pre-existing relationship between the defendant and the victim”, and Para 2.[6], “a presumption that the victim did not consent”).

This near-impossible situation was made more impossible byPara 2 [4] which states that:

  • A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
  • The essence of this definition is the agreement by choice.
  • The law does not require the victim to have resisted physically in order to prove a lack of consent.
  • The question of whether the victim consented is a matter for the jury to decide

This is a minefield and catch-all for any defendant and silver bullet for any victim-claimant.

The neo-Victorian ‘presumption that the victim did not consent’ in an age of promiscuity is absurd and totally out of synch with modern society. Paradoxically, these rape reforms are written by the very women who want greater sexual freedom at all levels.

Public interest or just publicity ?

At times it seems as if the CPS is more interrested in publicity than justice. It has a whole section of its Manual dedicated to how high profile cases should be handled (see http://www.cps.gov.uk/legal/p_to_r/rape_manual/rape_manual/ ).

  •  “Any decision to disclose information or material to the media must be taken in consultation with the ACM and must have the consent of the CCP. Such a decision must never be made by the reviewing lawyer alone.”

The CPS manual specifies that where either the defendant or complainant is famous, the Press Office at the CPS’s head office must be notified at an early stage if the case is likely to attract national media interest. This may be, for example, because:

  • a celebrity is involved (footballer, actress, TV personality ?)
  • the case is one of a serial rapist
  • a cold case solved using DNA advances

The CPS manual also specifies that:

  • “These are only some examples – there may be other reasons why cases are of interest to the national media,” [ and that ], “if in doubt, it is best to notify Press Office.”

Not content with leaking pre-trial information to the press and setting the tone for public consumption, the CPS believes it has the right, in particularly high profile cases, to orchestrate pre-trial briefing with police involvement. The reccomendation is that the:

  • “Press Office should be consulted about this and will advise on any arrangements.”

Myths and Stereotypes

Under this heading the CPS show some dangerous tendencies. It appears to have bought in to the feminist dogma of rape and rapists. There is no time or thought given over to the motivation for rape, the lack of re-offending, or the motivation for false allegations. (see http://www.cps.gov.uk/legal/p_to_r/rape_manual/rape_manual/index.html)

All the manual states is:

  • “We are aware that there are myths and stereotypes surrounding the offence of rape”

It then lists some examples of those ‘myths’:

  1. rape occurs between strangers in dark alleys;
  2. victims provoke rape by the way they dress or act;
  3. victims who drink alcohol or use drugs are asking to be raped;
  4. rape is a crime of passion;
  5. if they did not scream, fight or get injured, it was not rape;
  6. you can tell if they ‘really’ have been raped by how they acts;
  7. victims cry rape when they regret having sex or want revenge;
  8. only gay men get raped/only gay men rape men; and
  9. prostitutes cannot be raped.
  10. if the victim didn’t complain immediately it wasn’t rape

Unfortunately, many of the myths are themselves myths; others are shown to be false and yet others simply delusional.

Without wishing to get embroiled in detailed discussion, the Stern review of 2010 showed that alcohol (item 3 above), was a major player in rape allegations. And while it is apparent from questionnaires that some of the public believe some of the 10 items listed above (based on their responses), the ‘guiilty’ and ‘not guiilty’ pleas are very different, i.e. they bear little or no resemblance to the 10 listed items. The dichotomy is that a casually asked question will elicit the above responses but a person actually charged with rape will be unlikely to fall back on any of the above reasons or excuses.

F.A.S.O.

The False Allegations Support Organisation (FASO) in their response to the CPS reveiw captured many points raised by other organisations:

“What is perceived by our callers (over 3000 in 2010) that those who have been accused of rape, usually men, but not always, being treated as guilty from the start and forever after ?

They are often visibly arrested in public – they become media fodder and they and their families are open to public and local abuse.  The media will take it up, highlighting their address and if the case comes to court the media reporting can influence juries (as well as children being damaged at school and from press cuttings). So not only are they treated as guilty from the outset by the police, but by society.  That is why organisations like ours recommend anonymity for those accused of rape.”

The damage done by publicly revealing a man’s family address is obvious. It gives them no opportunity to evade threats from vigilatees and menacing phone callers who don’t really care if the person is (months later) found not guilty. And it is this delay that is so destructive. For example, an allegation made in July 2009 will not be heard until Dec 2009 and the man will have to wait until, say, April or May 2010 to be found ‘not guilty.’  On all 3 occassions the press have an opportunity to rachet-up the ‘public interest.’

Complaints Process

Despite assurances to the contrary there is no Complaints Process for some rape victims.

Search under “CPS complaints” and page upon page of URLs appear. All are, as one might expect, a variation on a theme. Sect 12 of the manual – to be found at http://www.cps.gov.uk/publications/prosecution/rape.html  – deals with “Complaints” in this way:

  • “Anyone who has a complaint about the way they have been treated by the CPS, or who feels that the criminal justice system has let them down and does not know who may be responsible, can write to the Chief Crown Prosecutor for the CPS Area where they live. The CPS has a complaints policy, and a leaflet describing the procedure to follow can be obtained from the local CPS office.”

But is that true ?

At no time does the CPS think of how to deal with men wrongly accused ? No, its sole focus is only on women who are alleged rape victims and who might not have received the level of treatment and consideration they might have expected from the police or CPS.

There is no level of treatment, consideration or expectation whatsoever for men anywhere in the CPS website.

Departing from the law

It is clear from Sect 41 of the Youth Justice and Criminal Evidence Act 1999 that rape laws are not applied as intended. The CPS acknowledges this fact. Sect 41 places a restriction on evidence or questions about a complainant’s sexual history (see also Sexual Offences (Amendment) Act 1976).

Research carried out in 2004 found that in rape cases coming before the Crown Court, in a three month period, there were applications to introduce sexual history in almost a quarter (23%) of cases and two thirds, or 15%, of those applications were successful (23% x 2/3). Sexual history was being introduced into trials without applications being made, as required by the law (http://www.cps.gov.uk/legal/p_to_r/rape_manual/rape_manual/index.html#a04 ).

When forbidden procedures and elements of evidence are being allowed into the court, it strengthens the argument that travesties of justice are befalling defendants. The claim that laws designed to protect defendants are routinely being broken is, in all probability, also true.

Conclusion

We will have to wait a few months to see what the CPS will do about a) perverting the course of justice (PCJ) and b). double retraction.

One can surmise a fudge, benefiting the women’s lobby so they will feel better but cruppling the elegant lines of the law will be the result. This is a perennial problem associated with moves to appease women’s pressure groups. There is no thought given to the inevitable sacrificing of a valued principle. The overriding concern seems to be the short term gain. We find this repeated in the medical field (e.g. IVF, abortions etc), and in the realm of drugs (e.g. HRT, Thalidomide), surgical enhancements (which can go wrong with dire consequences), to name but a few.

Those who work for FASO and PAFAA have bitter experience of the very opposite of this CPS promise:

  • “If the case does not pass the evidential stage, it must not go ahead, no matter how important or serious it may be.” 

This claim does not take into account the home wrecking that can happen between the date the allegations is made and the date the CPS finally decides not to proceed. This can be many months.

FASO and PAFAA, it can be supposed, have more than a few instances where this evidential stage criterion simply does not happen and miscarriages of justice ensue.

Nor is it good enough for the CPS to state that;

  • “We will continue to work with our colleagues in the criminal justice system and the third sector at national and local levels to help us develop best practice.”

Best practice is wanting and there is precious little sign that this review, or any other, will remedy the malaise.

END

———————

NB. The Review deadline is 6th May 2011

——————————–

References:

http://www.cps.gov.uk/consultations/pcj_response_form.doc

http://www.cps.gov.uk/consultations/pcj_index.html  

http://www.cps.gov.uk/legal/p_to_r/rape_manual/rape_manual/index.html 

http://www.cps.gov.uk/consultations/pcj_response_form.doc

http://www.cps.gov.uk/consultations/pcj_index.html

http://www.cps.gov.uk/publications/prosecution/rape.html#_05 

http://www.cps.gov.uk/consultations/pcj_consultation.html#_Toc284951051 

http://www.bailii.org/ew/cases/EWCA/Crim/2002/1033.html 

Footnotes:

[1] “Consultation on CPS Interim Guidance on Perverting the Course of Justice – Charging in cases involving rape and/or domestic violence allegations” (Feb 2011). http://www.cps.gov.uk/consultations/pcj_index.html

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2 Responses to 2011 Review: Perverting Justice

  1. Richard England says:

    The most probable result of the requirement for consent will be the widespread use of covert digital video-recording.

    Already there is a substantial market for ‘pen video cameras’ – that is digital video cameras incorporated into the body of a working ball-point pen, with a USB interface. The sellers of such devices, invariably around £90-100 for a quality model, cite their usefulness in addressing false allegations.

    In the US, the use of video recording is becoming increasingly common, particularly in universities, where male lecturers will record, openly or covertly, any meeting with a female student in their office. Such meetings often involve a male ‘chaperone’ standing outside the open door of the office, in the corridor.

    The same attitude is beginning to prevail in business, with male managers openly recording conversations and meetings with their female peers or staff.

    Such is the joy of feminisms achievement; the next generation of women will grow up in a digital world whereby they are under constant suspicion of being the source of false allegations against males, with many males actively employing technology to rebut any such allegation.

    With regard to sex though, the consequences are perhaps even more serious. The ready and easy availablility of digital technology will simply see the use of covert cameras to record the act itself – in other words, try to make a false allegation when the suspect maintained a video record to protect himself against such. In effect the feminist community will have unintentionally manoeuvred women into a society whereby private, covert porn films are made routinely, only to be rendered available in the event of a false allegation of rape. Concerns about privacy or data protection will be rendered meaningless if such films see false allegation cases being dropped like hot bricks.

    That’s the problem with evolution; living creatures always find a way to work around an obstacle. The more militant feminists are determined to ensure that the sexual act is determined to be rape unless concent is explicitely provided. It doesn’t need to be a form written in triplicate; it can just as easily be the woman’s words in a digital recording.

    I suspect that if the above tendency comes to actual fruition, many women will be somewhat upset with and rather vengeful towards feminists.

  2. rwhiston says:

    I suspect you are right on many levels.
    Women to date have been slow to turn on their sisters and one wonders if it will ever happen given that, say, 90% of women who are not feminists think they have achieved what progrees they have simply because of feminisim.

    RW

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