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Repeal or Redraft Bad Character and Sex Laws

Comment 18th August 2010

Here are some suggestions, borne out of my own experience, as well as those of a few others, to reduce the number of miscarriages of justice:

In full support of the SAFARI campaign, I believe anonymity should be afforded to all defendants accused of any crime until conviction, not just those accused of rape, and not just until they are charged. This would ensure that nobody’s trial, whatever they are accused of, would be prejudiced by misinformation or outrage stirred up by the media or by any other means. It would also prevent situations in which bogus ‘other victims’ ”come forward” after a media trawl by the police, in the hope of receiving compensation; this is a deeply wicked crime that has emerged in recent years and, apart from wrecking the lives of the innocent accused and their families, devalues and places in jeopardy those genuine victims who simply want justice, closure, and the appropriate treatment/therapy to help them cope with the trauma they have suffered. It is this treatment and therapy that any compensation money should be used for; it should not be given to the victim to spend like a lottery win. 

Government must treat sexual offences the same as other types of offence in terms of early release and recognition of rehabilitation, and cease using them for political gain. The Sex Offenders’ Register should be scrapped, or, in the alternative, there should be registration provisions for all  types of offences. Registration is an imposition with the threat of imprisonment and a stigma attached; it therefore amounts to additional punishment. It is also a life sentence in itself, because the police, being more interested in the soft option of profiling than proper investigation of the facts, can use it to “round up the usual suspects”.

The provisions for the admission of  bad character evidence in the CJA2003 should be abolished, since such evidence, when used to decide guilt in the instant case, can only be prejudicial; in the alternative, this evidence must be used very sparingly, as Parliament intended, and not dished out to prosecutors like sweets by pro-prosecution judges.

The application by the prosecution to adduce bad character evidence should be fully defendable in a voire direthe prosecution being held to strict proof of any facts claimed in the comments on the PNC record, for example. Any mitigating circumstances or unresolved disputes as to the facts relating to the ancient matters should be identified when the evidence is adduced. In the alternative, the case should proceed without the jury’s knowledge of the defendant’s bad character, if not until all the evidence has been heard, then at least until the prosecution’s case is complete, so that a proper assessment of the strength of the case against the defendant can be made by the judge before he decides whether bad character should go in. The whole of a person’s bad character should not be routinely used, but only such part of it as is sufficient for probity, and no more. In some cases this may only amount to naming some of the offences. Bad character evidence should never be used to bolster a weak case, as happens wholesale at present. The principle is well established, but judges are not abiding by it. Due consideration should be given to the time since the old offences were committed; if this time is in decades, then this should be recognised as signalling a significant reduction in propensity to commit offences of the kind charged. This is given scant consideration by judges at present. Prosecutors should not be allowed to adduce whatever type of conviction they like in their relentless effort to prejudice the jurors. In particular, if the previous offences are recognised as being of a type that engender public outrage, so that the prejudicial effect on the jury is overwhelming, then this should be a compelling reason for the judge to keep the evidence out, lest, as happens all too frequently, the defendant be robbed of a fair trial. It cannot be fair that a suspected burglar with a string of previous similar offences is more likely to be acquitted than somebody with previous sexual offences not necessarily similar or even related to the offence he is now accused of, simply because the jury will be more prejudiced by the latter’s past history.

In rape cases, s.41 provides that only the complainant’s sexual history is inadmissible. However, judges are taking it a stage further by not allowing any evidence against her to be adduced, evidence that may well go to her credibility/motives. This practice should cease.

Meeting a child following sexual grooming, etc. (s.15 SOA2003). This law is capable of being used against people who have literally done nothing wrong, but who simply have good relationships with children. Since what distinguishes innocent friendship from malign intent is the sexual element, this offence should only be made out if that element is present at some point during the episode complained of. It is ludicrous that a person can be convicted of a serious specified sexual offence carrying a maximum sentence of 10 years when there was never the slightest suggestion of anything sexual in the instant case. Moreover, bad character evidence is at present frequently used to decide guilt, making it very definitely a “thought-crime”. If we can now convict people for what we think they might do, then this becomes a life sentence for those on the sex offenders’ register, who, at the mercy of police profiling, are likely to be rounded up as one of the “usual suspects” if there is an incident near where they live.                                                                           

Meeting a child following sexual grooming, etc(s.73 CJIA2008). This amended version of the original s.15 needs to be redrafted as it introduces a dangerous recipe for further injustice, namely the possibility that if the child calls on his adult neighbour unannounced and without the adult’s prior knowledge, having said hello to him when with his family on two prior occasions in Tesco, a case against the adult could be made out. It means that an adult can be in trouble for the innocent friendly intentions of another (in this case, the child), intentions that were completely unknown to him. There is also the danger that, in trying to discourage the child, an adult might say “I’ll see you next week”, having no intention of sticking to it, yet he could be accused of “arranging” a meeting. Whilst there can obviously be no objection to a ‘grooming law’, it is clear that the present statute is highly capable of criminalising innocent people engaged in ordinary behaviour, and must, as a matter of urgency, if justice is what we want, be rewritten or have strict new guidelines appended to it.

Meeting a child following sexual grooming (both versions). Judges are ignoring the statute in cases where no relevant offence ensues. The statute clearly states that there must be evidence, at the indicted meeting, of the suspect’s intention to commit a relevant offence. This evidence must be tangible and incontrovertible. But what is happening in practice is that juries are being told, quite incorrectly, that they can convict if they merely think the suspect “was grooming” the child. Again, this is a recipe for injustice; redrafted guidelines in stricter terms may encourage judges to direct juries properly on this vital point of law.

A defendant should not be penalised at appeal for the poor performance of his counsel; this includes damaging tactical decisions such as not adducing evidence that could have assisted the defence case, and should apply even if the defendant has taken the advice of his counsel. Only if he makes a decision against the advice of counsel should he take responsibility, in which case, counsel should obtain a signed statement from him to that effect.

Convicted persons should be given ample opportunity to challenge reports from probation officers, particularly the pre-sentence report; probation officers should be accountable for the contents of their reports, and for their actions. The reports should take the form of sworn statements. The defendant should have the right to have a solicitor or McKenzie friend present at interviews.

These are just a few suggestions based on areas of the law I have come into contact with by one means or another.

However, I would really like to see the legislators scrap the CJA2003 and the SOA2003 and start again. These two appalling documents will be regarded in times to come, I fear, as New Labour’s true legacy, with 2003 the darkest year in recent times for fairness, justice, and Human Rights.

Why does this matter?

 

I know only too well what it is like to be a victim of a miscarriage of justice, having myself served a term of imprisonment and had my life wrecked, all for a crime I did not commit. What went against me was not incriminating evidence, but cynical misinterpretation of evidence of lawful activity, and of the widely drafted statute, by a Machiavellian prosecutor (who also invented ‘evidence’ because her witnesses’ evidence was not sufficiently damning). The case was riddled with such malpractices, exacerbated by the judge’s lack of appreciation of the workings of the law. The result was that the jury were bereft of the necessary guidance from the court as to what must be proved for a conviction.

In a fair society, none of the cynical ploys that characterised my case would be acceptable.

I hope we will see a return to the moral view that it is “better to let ten guilty people go than to imprison one innocent person” – a philosophy that I was brought up to believe was a cornerstone of English justice, admired and copied worldwide.

That is in no way to suggest that criminals should get away with their crimes, but rather to re-express the unease and unhappiness we should all be feeling when the system has failed so devastatingly and reprehensibly as to put an innocent person behind bars, often wrecking the lives of many others, not just that of the person convicted.  

In recent years a great deal has gone seriously wrong with justice, at the centre of which seems to be the adversarial system we employ in this country. Ultimately I would like to see a change to another system, but I do believe the present one can be made much fairer by the introduction or reinstatement of safeguards for the defendant. 

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