The Fair Sex?

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.