By
Les May
I’d
like to see more MPs in parliament with the same sort of life
experience as that of Heywood and Middleton MP Liz McInnes. She’s
not from a privileged background, she did not slide easily from
university, to a job with a charity and then into parliament, like
some women MPs I could mention. She has had what I, and no doubt
many of her constituents, think of as ‘a proper job’.
But
on one point I disagree with her profoundly. That is her continuing
support for policies which in make it difficult for men accused of
rape to be treated fairly and equitably. Or if you like, her support
for policies which lead to men being treated unfairly and
inequitably. By ‘fairness’ I mean something more than the
legal test of ‘natural justice’, though it is
increasingly the case that organisations like universities and trades
unions to not adhere to the test of ‘natural justice’
when dealing with accusations against men of sexual assault.
The
proximate reason for me writing this article is a piece which
appeared recently in the Rochdale Observer in which Liz McInnes
responded to the comments of a Manchester solicitor, Nick Freeman,
who called for people who make false claims of rape to be named and
shamed on a public register.
Now
I think these comments by this solicitor are extremely unhelpful in
the context of any rational discussion about rape. But they would
never have been made if, in rape cases, the accuser was not granted
lifetime anonymity whilst the name of the person accused is made
public. What prompted them was the case of Liam Allan who was on
bail for two years charged with six rapes and six sexual assaults.
When the case finally came to court it was revealed that the police
had withheld evidence which would have demonstrated not only that he
was not guilty of the crime he was charged with, but that no crime
had been committed.
Liz
McInnes’s reported comment that, ‘justice was done in the end
and I don’t see any reason to change the law around anonymity’,
is in my view thoughtless callousness. At
the very least this case should have prompted some reflection because
in this case the ‘victim’
is Liam Allen not the young woman who made the accusations knowing
them to be false. But knowing also that the police have been
instructed to believe the complainant and that she would be treated
as a ‘victim’ even
though her supposed assailant had never even been brought before a
court.
Nor
do I think she can substantiate her further comment that ‘the
statistics show that the numbers of false allegations are very, very
small compared with the total number of cases’.
I
say this without malice. Getting accurate figures for these things is
very difficult, not least because so many women’s advocacy groups
cherry pick and simply highlight the figures which support their
case.
The
best figures I have been able to obtain are that in 2016 convictions
for rape and other sexual offences were 5,190 and 13,490
respectively. They are taken from a BBC website report dated 10
October 2017. Don’t bother trying to follow the link to the CPS
website for the original report, you’ll get a 404 error. The CPS
seems more interested in demonstrating how efficiently it process
cases than in providing a breakdown of conviction rates and attrition
rates for serious crimes like rape.
What
seems to be agreed is that taking these two classes of sexual offence
together the conviction rate, that is the proportion of cases brought
before the court which result in a conviction, is about 60%, and that
for the same two classes of offence the attrition rate, that is the
proportion of cases reported to the police which result in a
conviction, is about 14%. Both these figures seem to be comparable
with the rates for other serious crimes.
I
draw three conclusions from this. First is that juries are very
willing to convict men if there is good evidence of their guilt.
Second that if the criterion used by the CPS is that a case should
only go to court if there is a 50% chance of a conviction, then the
CPS is getting things right. Third that 2 out of every 5 men brought
before a court and publicly accused of a sexual offence, are in fact
innocent. I suggest this is the figure which Liz McInnes should have
in mind when she ponders the question of whether there is any
reason to change the law around anonymity.
Whilst
these figures do not support solicitor Freeman’s claim that the
Liam Allen case is ‘the tip of the iceberg’ and certainly
demolishes his call for a ‘name and shame’ register which
would only turn reporting a potential crime to the police into little
more than an exercise of Russian roulette, they do not support Liz
McInnes’s claim that the Allen case does not suggest we need a
rethink about the anonymity rule.
Not
only is it unfair that accuser can hide behind a veil of anonymity
whilst even an innocent accused cannot, there are occasions when
anonymity seriously disadvantages the accused. This happened in the
Ched Evans case.
Evans
was convicted of rape in 2012 and spent two and a half years in
prison.
When
initially questioned Evans told the police that his accuser had used
specific words indicating that she was a willing participant. His
conviction was quashed in 2016 by the Court of Appeal, and a retrial
was ordered. At the retrial later in 2016 he was found not guilty.
The Court of Appeal based its judgement on the fact that new evidence
had appeared. That new evidence was that the complainant had used
the identical words in a sexual encounters with two other men close
to the night she had her encounter with Evans. This made Evan’s
account entirely plausible. Had the complainant not been given
anonymity this ‘new evidence’ could well have been
available to the defence at the time of the original trial.
The
Evans case also shows why the oft repeated call for anonymity for the
accused is not the way to go, as once again the ‘new evidence’
would not have been available at the initial trial.
An
unwelcome side effect of the anonymity rule is the implication that
in cases where there is enough evidence to launch a prosecution, the
complainant is somehow shamed simply because they believe something
happened to them against their will. This cannot be right.
Even
more insidious is the practice of referring to complainants as
‘victims’
at
the outset and insisting that they should be believed. Commenting on
the recent collapse of the Liam Allen and Isaac Itiary cases Lord
Macdonald, who was Director
of Public
Prosecutions
(DPP) from
2003 to 2008, said that
these were
examples of two failures of public policy: “Firstly,
the political rhetoric that privileges victims’ rights over
defendant protections has come home to roost. Complainants should be
treated with respect, but the inclination to defer to them as
victims, even before a trial has determined that this is what they
are, tramples over the objectivity police should bring to their
investigations.”
Previously
McDonald had said:
'…
the worst miscarriages of justice I have seen in my career have
resulted from blinkered investigations in which the police [have]
believed a theory at the start of the case and then gone on to
'prove' that theory. This supposedly pro-victims' rights stance of
saying we believe the victims at the outset is precisely what we
don't want. We don't want the police deciding what the truth is
before the investigation starts … Not everyone who tells the police
that they have been a victim of crime is telling the truth, it leads
to the police believing people who are telling lies.'
'The
victims’ rights movement was born from the best of reasons, but it
is now leading to an imbalance in the justice system that threatens
basic fairness.'
It
was Keir Starmer who as DPP promoted this use of the term ‘victim’
for complainants. He has been enthusiastically followed by the
present incumbent Alison Saunders.
Fortunately,
as I pointed out in my NV article
‘A
Great Injustice and the Rules of Evidence’
(19 November 2016), the ending of the 2015-2016 session of Parliament
meant that Starmer could not do any more harm with his Private Member
Victims
of Crime Etc (Rights, Entitlements and Related Matters)
Bill.
The
reason that I consider this even more insidious than the anonymity
rule is that it has been extended even further by large sections of
the press in
recent weeks, egged
on by MPs like Harriet Harman.
Routinely
any accusation of an
act
of
vaguely
sexual impropriety is immediately taken to be true. The
accuser is then
referred
to as a ‘victim’
or even a ‘survivor’.
Harman,
who really ought to know better, went so far to say, ‘I
think that the absolute key to this, when I think about my own
experience and think about the Harvey Weinstein thing, is we need a
system of whistle-blowing, anonymous whistle-blowing’.
Frankly
this kind of thing is worthy of the East German secret police,
the
Stasi, at
its worst. Where
is the fairness in such a system? Nor
is there any real comparison to be made between Harman’s claim of
being ‘propositioned’
by
a tutor and some
of the
accusations levelled at Weinstein.
Whilst
I have concentrated on the impact of what I see as a steady
move towards
making
it more difficult for any man to defend himself in court against an
accusation of rape or other serious sexual offence, such moves
ultimately undermine our belief
that
if we find ourselves in court we will be presumed as
‘innocent
until proven guilty.
That is something that should trouble us all.
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