Category Archives: Comment

Celeb sexual offence trials: The CPS can’t win

Crown CourtOh dear, it seems the police and the Crown Prosecution Service can’t win. First they were villified for not bringing a case against Jimmy Saville during his lifetime. Now they are being criticised because they did bring ultimately unsuccessful cases against Dave Lee Travis and Bill Roache. Meanwhile Operation Yewtree, the police enquiry set up in the wake of the posthumous Saville allegations, is being derided as a celebrity “witch hunt”.

The Saville, Roache and Lee Travis cases of course all depend on their own circumstances. I’m not going to comment on the merits of individual cases. What I do want to discuss is the basis on which decisions to prosecute and not prosecute are made, and in particular, the significant influence of the High Court over the way such decisions are made in sex cases.

Generally, decisions whether to commence criminal proceedings are made on the basis of at test laid down in the Code for Crown Prosecutors, the “Evidential Stage test” or “the realistic prospect of conviction test”.

It provides that a case must only go ahead if prosecutors believe an “impartial and reasonable jury… acting in accordance with the law is more likely than not to convict the defendant…”.

In other words: the chances of a conviction have got to be 51% or better. But note the other very important element to the test: it requires prosecutors to assume the jury will be impartial and will act in accordance with the law. In cases involving well-loved celebrities and historic allegations from what might be described as a bygone age that might be a big ask.

In any event, that is the test prosecutors must apply. However, in relation to sex cases, since 2009 it has been given an additional “spin” by the Queen’s Bench Division of the High Court.  It arises out of the case of R(FB) v DPP.

“FB”, as it is known, was a very sad case. The complainant, FB, who has never been identified, was the victim of a serious attack: his ear was bitten off. He went to the police, identified his assailant and picked him out on an identity procedure.

However, FB had a history of mental illness. An expert said he suffered from hallucinations. It’s clear the CPS wrestled for some time with its conflicting obligations to disclose to the defendant’s legal team material which might assist him; to protect FB’s privacy, including his confidential medical records; and to put the defendant through a trial only where the case passed the Evidential Stage test. The deeply unfortunate result was that FB attended court on what was intended to be the first day of the trial only to be told the case had been dropped and a verdict of Not Guilty returned against the defendant.

FB instructed solicitors who went to the High Court. The court found that the CPS’s decision to drop the case had been “irrational” under their own guidance, and had breached the state’s duty to provide protection to persons suffering ill-treatment at the hands of others. FB was awarded £8,000 compensation. The Not Guilty verdict returned against the defendant remained, of course, unaffected.

The significance for the CPS’s future practice was twofold: first of all it established that  decisions not to pursue those suspected of criminal offences were susceptible to judicial review. Secondly, the High Court said that the CPS’s Evidential Stage test must be interpreted differently in certain types of cases. The relevant part of the judgment is worth quoting in full:

“49. There was also discussion whether in applying the “realistic prospect of conviction test” a prosecutor should adopt a “bookmaker’s approach” (as it was referred to in argument) or should imagine himself to be the fact finder and ask himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he knew about the defence case. In many cases it would make no difference, but in some it might. Mr Perry QC submitted that the latter was the correct approach…I agree with Mr Perry. 

50. There are some types of case where it is notorious that convictions are hard to obtain, even though the officer in the case and the crown prosecutor may believe that the complainant is truthful and reliable. So-called “date rape” cases are an obvious example. If the crown prosecutor were to apply a purely predictive approach based on past experience of similar cases (the bookmaker’s approach), he might well feel unable to conclude that a jury was more likely than not to convict the defendant. But for a crown prosecutor effectively to adopt a corroboration requirement in such cases, which Parliament has abolished, would be wrong. On the alternative “merits based” approach, the question whether the evidential test was satisfied would not depend on statistical guesswork.”

In other words: in certain types of cases, where prosecutors know from their experience that on the evidence before them the jury is likely to acquit the defendant, but where the prosecutor nevertheless believes the complainant, they should proceed with the case – notwithstanding that on the balance of probabilities they expect that the jury will ultimately find the defendant Not Guilty.

The High Court having authoritatively interpreted the Evidential Stage test in this way the CPS has had no choice but to incorporate it into their official guidelines in dealing with sex cases.

It’s worth comparing the words of the High Court in FB with the note sent to the trial judge by the jury in the Dave Lee Travis case after two days of deliberations, and before returning Not Guilty verdicts on 12 out of 14 counts:

‘…[the prosecutor], in summing up, said if we believe that the complainant was telling the truth, then we must find the defendant guilty. Can you give us any guidance on how that should be weighed with the lack of supporting evidence and the passage of time so we are sure beyond reasonable doubt?’

It seems to me therefore that the Dave Lee Travis jury was troubled by precisely the same doubts – i.e. lack of corroborating evidence – that the High Court said prosecutors should ignore when deciding what cases to bring.

Personally I’m not sure that the gloss put on the Evidential Stage test by the High Court in FB is correct or helpful. My worry is that it may lead to the running of weak cases when allegations of sexual misconduct are concerned. The High Court described the alternative as the “bookmakers approach”. If that means, as well as can be done, a cool and objective estimation of whether the chances of success are 51% or above, and if not, dropping the case; perhaps that is not such a bad thing. Let me explain why:

First of all it seems anomalous to have one test for whether to charge defendants in the general run of cases, and what amounts at least to a “different interpretation” of the test for sex cases.

Secondly, with respect, I’d suggest that the High Court risked engaging in a little “statistical guesswork” itself when saying that convictions are hard to obtain in certain types of cases. Certainly no empirical evidence to this effect was referred to in the judgment. In my opinion, it is not that convictions are hard to obtain in certain types of cases, it is that convictions are hard to obain in cases where the evidence is essentially one person’s word against another – and sex cases are more likely that others to fall into that category. But they are not the only kind of case where this problem applies: FB itself wasn’t a sex case, but one of wounding with intent, the kind of case that is a staple of CPS work. It’s hard therefore to see why the problem of the evidence being one person’s word against another should be treated differently depending on the nature of the allegation.

A point made by the High Court was that prosecutors should not adopt what was described as “a corroboration requirement which Parliament has abolished”. I’m not quite sure to what this was intended to refer. There was an old rule requiring corroboration, but it applied to a very narrow category of cases, not including rape or indecent assault.

The wider corroboration rules, which is what I believe the High Court had in mind, did not concern whether cases should be brought or not, but simply required judges to warn juries in cases where there was no corroboration. They were abolished in 1995.

My point, therefore, is that adopting a “probability-based” interpretation of the Evidential Stage test would not be to restore a corroboration requirement as abolished by Parliament, because, in relation to rape and indecent assault certainly, there never was such a corroboration requirement in the first place.

Rape and other sexual offences are horrible crimes that can damage people for life. Having read the heart-rending accounts of many complainants in such cases I don’t need anyone to convice me of that. I can also speak with some authority on the subject of how difficult it can be to make a decision to prosecute or not prosecute a case. It is very tempting, when reading moving accounts from complainants, to feel that not to take on their case would be a betrayal of them. It’s very tempting to think “Well, we’ll let it run and see what happens”. That is why the strictures of the Evidential Stage test are so important: it really does no-one any favours to build up a victim’s hopes, to put them through months of anxiety about giving evidence, to oblige them to relive their experiences in the witness box, where there is not even a 50/50 chance of a conviction – whatever the type of case and the good intentions of the prosecutors.

The CPS works within the confines of our criminal justice system and part of that system is that juries are instructed in the firmest terms: unless you are sure the defendant is guilty you must acquit him. That is obviously what was concerning the jury in the Dave Lee Travis case.

I don’t know the details of the Bill Roache or Dave Lee Travis cases: whether they were apparently weak cases, strong cases or somewhere in between. Whatever the merits, they at least serve as an opportunity to consider the guidance given to prosecutors in such cases. In my opinion there is an argument that such guidance should be consistent with guidance in other cases: that everything must be done to build a case, to gather all available evidence, but once that has been done – if there is not a better than evens chance of achieving a conviction that case should not be run.

By David Allan, a barrister specialising in the criminal law.

Follow David on Twitter: @DavidAllanLegal

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Nigella Lawson – court celebrations, media comment and the modern Bar

Image: The Guardian

Image: The Guardian

Elisabetta and Francesca Grillo have been acquitted of defrauding Nigella Lawson and Charles Saatchi of over £600,000 in case you haven’t heard. It was the most sensational and high-profile trial of 2013 and the result is sure to be boon for the defence advocates involved; Anthony Metzer QC and Karina Arden. Well done to them both.

One of the things that caught my eye though was the comments attributed to Tony and Karina after the trial had concluded. According to reports, Karina Arden acting for Francesca Grillo, called out “C’e u Dio” (“there is a God”) upon the Not Guilty verdicts being read out, a phrase which was taken up by her client.

Tony Metzer was more restrained at the time but said afterwards “I’m just delighted and thrilled that what I believe the right verdict was returned by the jury”. It is not clear whether this was a comment to the press or made privately and passed on.

The reason I mention these comments is because they touch on a central element of the professional duties of a barrister and are related to the question that invariably confronts any criminal barrister on revealing their profession to a stranger: “How do you defend someone you believe to be guilty?”

We’ve all got stock answers to that one but one of the ways in which a barrister resolves such an ethical conflict is because whenever you are defending someone in court and making a speech on their behalf, you are making objective submissions as opposed to giving the jury your personal opinion. So, a defence barrister should make his speech in terms such as “You’ve heard the evidence but I suggest there are some key weaknesses in it…”, as opposed to “Members of the jury, you’ve got to believe me when I say I don’t for one moment believe that my client….”

This way of approaching the task of defending someone accused of a criminal offence is enshrined in the Bar’s Code of Conduct, paragraph 708 of which provides that “A barrister when conducting proceedings in Court….must not unless invited to do so by the Court…assert a personal opinion of the facts”.

To exclaim “there is a God” after hearing a Not Guilty verdict is to imply pretty strongly, I’d say, that in one’s opinion the verdict returned was the correct one. Karina’s reported exclamation came after the verdicts had been delivered so she cannot be accused of trying to influence the jury. No doubt she had built up a close relationship with her client during the long and gruelling case, and no doubt she was personally very happy to have secured a good result, but I’d suggest that while she was still in court she was still representing her profession and therefore with hindsight it would have been better had she remained calm and collected, at least until she got into the privacy of a conference room, because doing otherwise tended to chip away at the professional distance between a defence barrister and their client, which protects all defence advocates during their careers in which they will inevitably represent some pretty reprehensible individuals.

As I say, Tony Metzer reserved his comments until after the hearing had concluded and expressed his thoughts in more measured terms. The duties of barristers in relation to commenting to the press are in the process of changing. Up until recently there was a rule that a barrister should not express any opinions on the facts of a case in which they were instructed when speaking to the media. That would encompass expressions of opinion about the correctness or otherwise of a verdict. Again, that rule existed in order to maintain the professional distance between a barrister and his client and the independence and integrity of the barrister regardless of whom he was representing.

The prohibition on commenting to the media has occasionally been broken by barristers in high-profile cases unable to resist the lure of the TV crew microphone but even so, generally although we might read reports of the closing speeches of counsel in court, we did not see them answering questions on the steps of the courthouse afterwards.

Now the Bar Council has decided to relax this prohibition. It is understandable when everyone is under pressure to be more commercial and barristers are in direct competition with solicitor advocates who have a different code of practice.

However, I for one am sorry to see the old rigid rules passing away because they served an important purpose, to maintain the role of a defence advocate as an officer of the court, with a duty to serve the interests of justice as opposed to being an entirely partisan mouthpiece of their client. By preserving the difference, these rules helped all criminal advocates answer honestly and proudly that question: how do you defend someone you believe to be guilty?

By David Allan

Twitter: @DavidAllanLegal

Senior Advocate with the Crown Prosecution Service, his views expressed are his own.

A failure of Open Justice?

RCF Guardian

We have looked at the Attorney-General’s References for the case of ‘predatory’ Neil Wilson and the artist Graham Ovenden, heard on 8th and 9th October 2013 respectively. In both cases, we said that we will need to see the full transcript before commenting on the sentence.

So, six weeks down the line where are we? The Court of Appeal have started televising (some of) their proceedings. This has been a slight damp squib so far, cameras in courts haven’t brought the house crashing down, but it’s hardly set it alight either. As a blog that has, as its stated aim, demystifying and explaining the criminal law, can we share a gripe?

In becoming the first televisual Lord Chief Justice, Baron Thomas said “the start of broadcasting from the Court of Appeal … This will help a wider audience to understand and see for themselves how the Court of Appeal goes about its work”. So, how do they go about their work? Slowly it would seem. Releasing judgments into the public domain (preferably for free) is a vital part of opening the courts (far more important than cameras many would think).

Why has it taken six weeks to publish these two judgments? Especially as both have generated a large amount of public comment? A transcript can be prepared pretty much instantaneously. We accept that it has to be anonymised (the victims involved cannot be named) and checked by the relevant Judge before being released. Even so, there is no reason at all why it should not have been published weeks ago.

Open Justice is not always easy, but it is vital. Informed comment by an informed populace requires that people are to access the information. If the Lord Chief Justice wants to genuinely open up the Courts, then great, but we cannot see for ourselves how it ‘goes about its work’ unless we see the fruits of their labour, and whilst it is still current news.

‘Baby P’ Mother to be released on parole

The BBC (and all the newspapers that we have seen – the Mirror for example) did public understanding of sentencing a disservice in their coverage of the hearing of the Parole Board that directed the release of Tracey Connelly, the mother of ‘Baby P’ from custody.

At this stage, news reports are pretty scant. What will leave some people scratching their head is this line (variants of which appeared on other websites) – Ms Connelly “was jailed indefinitely, with a recommended minimum term of five years in May 2009“.

Five years from May 2009 is May 2014. So how come can she be released before then? Is this an indication that sentencing law in England is very, very silly?

‘No’ is the short answer. What has happened here is an example of the press not reporting things properly. Ms Connelly received a sentence of IPP (Imprisonment for Public Protection). We have a separate factsheet on how these operate, but, in brief, the Judge concluded that Ms Connelly was a potential danger to the public and could only be released when it was safe to do so.

He had to fix a ‘minimum term’ and this would have been calculated as being half the determinate sentence that otherwise would have been imposed (in this case 10 years). From that, he would have deducted any time spent on remand. In this case we have the sentencing remarks (thanks to Neil Powell for pointing them out!). We can see that Ms Connelly spent 644 days (1 year, 279 days) on remand before she was sentenced. This means that her actual tariff would have been 3 years and 86 days. This would mean that the earliest date she could have been released was about 1st August 2012. She has actually stayed in prison ‘over tariff’ by more than a  year.

So, is the justice system bonkers? No. This all makes sense. It’s just sloppy reporting that misleads the public.

Note : Thanks to Neil for pointing that out – we had originally used the Court of Appeal judgment in the case of one of Ms Connelly’s co-defendants, Jason Owen (you can read that judgment here) which is still worth reading.

More Miscarriages of Justice Compensation – Allen v UK

Background

We looked at the way that the Court of Appeal dealt with deciding whether victims of miscarriages of justice should be compensated in various cases (including Barr George) earlier in 2013.

It was widely reported on 12th July 2013 that Lorraine Allen lost her bid in the ECHR to be compensated after serving a three year sentence for the manslaughter of her son. She was convicted in September 2000 and sent to prison. Her conviction was quashed in 2005 (long after she had served her sentence) on the grounds that the medical knowledge relating to ‘shaken baby syndrome’ had moved on since then and there were alternative explanations for the injuries.

The Court of Appeal did not order a re-trial (which is not unusual in a case where someone has served their sentence in full).

 

Decision 

Ms Allen applied for compensation under the scheme in place at the time (again, fuller details in this post). This failed in the UK, in part because there was no ‘new fact’ – just a re-evaluation of the medical evidence. Further, Ms Allen could not establish her innocence.

She took her case to the ECHR arguing that to deny her compensation put the UK in breach of its obligations under Art 6(2) European Convention – “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law“. Ms Allen was not complaining that the refusal or compensation per se was a violation of the presumption of innocence, just that in her particular case the reasoning of the English Court of Appeal when they refused compensation was in such terms as to cast doubt in her innocence.  v

The ECHR stated the principles to be applied: “the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence.

What did that mean in Ms Allen’s case? The ECHR is a review Court – their job is to review the decision of the Court of Appeal (in this case) to see whether its decision is within the margins of what is permissible. Here, they concluded that the Court of Appeal stayed well within that margin and, therefore, that the appeal had to be dismissed.

 

Comment

It is important to note that the ECHR analysed the question by considering the Court of Appeal’s role when set against the statutory test, not whether the statutory test was unlawful of itself. What I mean by that is that the Court of Appeal has to go through the questions that are set out in  s133 Criminal Justice Act 1988 and give reasons for their conclusion.

The ECHR then looked at the answers they gave and the language they used, they did not look at whether the questions that they are told to ask are the right ones. It may be that they come back to that another day.

As noted in the previous post, this area gives rise to some pretty complicated issues. It seems to me, however, that when the state takes away someone’s liberty, and they do so wrongly, they should have to compensate the individual for that. There will be people who ‘get away with it’ as a consequence, but I would rather that there were unmeritorious cases of people getting compensation than people who are innocent, and have had their lives torn apart by the state, not being given any recompense for that.

 

 

Crime and Punishment, or Law and Order : Trondheim

A toddler is taken by two boys and brutally killed by them. It’s a senseless, and in some ways sadistic, killing. But the victim isn’t Jamie Bulger, it’s a 5 year old Norwegian girl – Slije Redergard. The killers have never been named in the media, but they were 6 year old boys.

The two killers were four years younger than Jon Venables and Robert Thompson and even in England they would have been too young to be prosecuted. But the four year age gap is not the only difference – the way that the two communities dealt with the child killers were poles apart.

Mr Venables and Mr Thompson were, at the time of the killings, ten year old boys. There was an immediate outpouring of hate when they attended court and many people expressed outrage at the fact that, when they were found guilty, they ‘only’ received a life sentence with a minimum term of 8 years.

As is well known, Mr Venables re-offended after his release and was imprisoned for child pornography offences. With the news that Jon Venables release was directed by the Parole Board, the reaction has not been restrained. Jamie’s mother, Denise Fergus, has expressed her anger at the release, as well as her view that the Parole Board got it wrong. I’m not criticising her, her reaction is understandable – she has, after all, lost her son.

But she is certainly not alone in her views. A quick search on twitter (#justiceforjames) shows that there is a great deal of anger. One, chosen at random, is :

JB1a

Is our reaction right? It is useful to look at just how different the reaction in Norway was. Mr Thompson and Mr Venables were tried as adults in the Crown Court, their mugshots released to the public. In Norway on the other hand”Silje’s killers were back at [a different local school] within a week. The local community [who knew their identities] were encouraged to air their views and brought together to grieve openly … there were no reprisals against either of the boys or their families. They were able to carry on living on the local housing estate.”

In Trondheim there were no calls for punishment, let alone the outpouring we saw in the UK. This seemed to be across the board. Silje’s mother, for example, agreed that they should not be punished sayingI feel sympathy for them … They need compassion. They must be treated as children and be shown kindness and concern rather than vengeance.”

Of course, the boys in Norway were six, rather than ten in England. It doesn’t appear that that would have made a difference – the age of criminal responsibility is 15 (rather than 10 in England – the lowest in Europe). A journalist who covered the case saidThey were six-years-old, but even if they were 11, it would not have been an issue.” The police officer in charge of the case, when (it seems) he was asked about the Bulger case, said “I really don’t like to hear that you can put children, ten years old, into custody“.

Have we got it right? Or could we learn from our cousins across the North Sea? I can’t pretend that I’ve got all the answers, but sometimes I think we ought to have a proper conversation as to whether our approach to penal policy is right. There is a case against hate, a case for compassion in dealing with criminal acts committed by children.

Making policy based around individual cases is always dangerous, especially when dealing with ‘outliers’, cases such as these that are extreme. Of course the Slije Redergard killing is different to the Jamie Bulger one, and England is different to Norway. Having said all of that, let’s not forget that even allowing for the differences in population (and urban populations), Norway has lower crime, lower costs of incarceration (and the criminal justice system in general) and a lower recidivism rate. Maybe we could learn from them?

 

When is consent not consent?

Introduction

Truth, it is said, is often stranger than fiction. Studying law you often try to analyse a piece of law by thinking up hypothetical examples of facts that could happen to test the extremes. Practicing law you find that whatever set of facts you can dream up in a classroom will be beaten in real life.

The Court of Appeal had to grapple with the seemingly straightforward case of what is meant by consent in relation to sexual offences.

Facts of the case

On 27th June 2013, the Court of Appeal gave judgment in the case of McNally [2013] EWCA Crim 1051.

Ms McNally had started communicating with the victim (I’ll call her V) when they were both about 13 on a social networking site called Babbo. For the next three years they communicated a lot on the internet before agreeing to meet after V’s 16th birthday.

Ms McNally used the name ‘Scott’ and it seems pretended that she was a boy. They had started an online relationship and had discussed having sex. As the Court of Appeal noted “Scott” would talk about what he wanted to do to her with “it” and “putting it in” which the complainant took to mean “his” penis.”

The online and telephone relationship developed to the point where Ms McNally arranged to visit V. There were three visits during which sexual activity (digital penetration by Ms McNally of Vs vagina) occurred. On the fourth visit V’s mother confronted Ms McNally as to whether she was actually a girl, not a boy as she had stated, and she accepted that she was.

V’s mother complained to the police. V was spoken to and said that “she said that she did not know that “Scott” was a girl. She considered herself heterosexual and had consented to the sexual acts because she believed she was engaging in them with a boy called Scott.”

Ms McNally was arrested and interviewed, where she stated that V had known (or had at least suspected) that he was a girl.

At Court, Ms McNally pleaded guilty and was sentenced to three years youth detention. She appealed on the basis that the conviction was wrong – any deception about her gender did not vitiate (negate/remove) the consent.

It seems that the deception practiced by Ms McNally came from confusion about her own gender rather than any more sinister motives.

The Court of Appeal’s view

The first hurdle was that Ms McNally had pleaded guilty. This is always a big hurdle (see here) but I won’t look at that in any detail (as this is already going to be longer than a usual post).

The real meat of the decision is whether the deception practised by Ms McNally would negate the consent that was undoubtedly given by V to the digital penetration? What is meant by ‘consent’’?

The starting point is the Sexual Offences Act 2003. This gives further guidance as to consent (s74):

For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice.”

On a separate note, by virtue of s76, any consent is nullified if the defendant “intentionally deceived the complainant as to the nature or purpose of the relevant act” or “intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.” These reflect the law for hundreds of years. Whether there should be an irrebutable presumption is a different matter, but that doesn’t arise here.

So, what is meant by ‘choice’ and ‘freedom to consent’?

The question was set out well in para 23 “The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent.”

The reference to EB refers to a rape case where the defendant was HIV positive. The Court there stated “Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act“.

After that, the law has moved on. The Court reconsidered the question of consent in relation to the Julian Assange extradition request.

The position after that was perhaps best summarised in the case of F v DPP from March 2013. This was a Judicial Review of the decision to prosecute (the CPS said that they wouldn’t prosecute the alleged perpetrator, the complainant was saying that this was wrong). This involved a husband and wife with a backdrop of domestic violence. In relation to having sex, the wife “consented on the clear understanding that the intervener would not ejaculate within her vagina. She believed that he intended and agreed to withdraw before ejaculation.”

The Court held that, “ If before penetration began the [husband] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina … she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated.

Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.

This then creates the possibility that a factual untruth told by a defendant is capable of undermining consent.

What sort of lie are we talking about?

In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way” identifies the route through the dilemma.”

How to you decide in an individual case? No general guidance is given. Why does not being forthcoming about HIV status leave the consent intact, when not telling the truth about ejaculation not? The Court gives no answer.

What about the case of Ms McNally? Here, the Court said:

Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception” and therefore “It follows from the foregoing analysis that we conclude that, depending on the circumstances, deception as to gender can vitiate consent” [para 26-27]

Again, there is no definite guidance as to which circumstances fall on which side of the line.

The Court of Appeal dismissed the appeal. They did allow a separate appeal against sentence, reducing the three year sentence to nine months, suspended for two years.

Comment

What this case consider is when does a deception about an individual’s personal characteristics negate consent?

There are three possible answers:

(1) Deception always does

(2) It never does

(3) It’s a matter for the jury to decide in any particular case.

The Court’s conclusion is that the answer is (3), subject presumably to some threshold test. Are they right?

Dealing with (1) first, that clearly cannot be right. As @Lyndon_Harris pointed out during a twitter debate on this issue, if he says that he is a footballer, and someone agrees to have sex with him as a result of that statement, if he just enjoys a Sunday afternoon kickabout, does that make him guilty of rape?

My own view is (2). To deceive someone of full capacity in order to have sex with them is morally reprehensible, but it seems to me that it should not attract the sanction of the criminal law, especially when you consider the severe consequences. Here, Ms McNally will be subject to the provisions of the Sex Offenders Register. Although that will ‘only’ last 10 years, given the hysteria about sexual offences, this will taint the rest of that teenagers life – is that right?

I am an adult, I was born a man, and I am someone who has always been sure about my gender and sexuality. On some views that makes me fortunate. Ms McNally was 17 when this happened and had “a history of self harm and confusion surrounding her gender identity and sexuality”. That doesn’t excuse the behaviour (morally, even if is not a crime) but it should lead us to question whether locking her up is the proper way a civilised society deals with a vulnerable teenager.

The decision of the Court that a deception is capable of being rape raises the question of when that will be so. The answer given is that, “In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way” identifies the route through the dilemma.”

In my view, this is wholly inadequate. It gives no guidance at all. Tonight, all around the country, men and women will engage with others in all sorts of sexual activity which has an element of deception as a prelude. Are all of these people potentially rapists? Which deceptions vitiate consent may be ‘obvious’ to the Court of Appeal, but it’s far from obvious to me.

Some questions that arise:

Does this require an ‘active’ deception – ie a positive statement that is untrue?

This is particularly acute with transgendered people (see below). Does a man who presents as a woman make a statement that he is a woman? Does he have to ensure that everyone who he may have any sexual encounter with is aware of his gender? Where do we stop with this? If someone is dressed in an army uniform for a fancy dress party required to say to someone that she is chatting up that she is not actually a soldier, in case her potential beau has a particular fetish for uniform?

Who is to judge what deception is ‘sufficient’?

The Court of Appeal feel that gender is, presumably, such an integral part of a person’s identity that a deception about it is serious, in a way that someone lying about their financial wealth is not.

But who judges that? Whilst we may all agree that someone saying that they are a millionaire when they are on benefits is not rape, why is that? There is presumably some element of caveat emptor about that, coupled with the unspoken assumption that basing a choice of sexual coupling on the wealth of a partner is not morally deserving of protection.

What about the religion of a sexual partner? Religion is a fundamental part of many peoples identity. Quoting the Court of Appeal again :

Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male … M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception”. For many people, substituting religion, or HIV status, or many other characteristics in the above quote would apply equally to a person’s preference.

Other examples off the top of my head – if I pretend that I am infertile to avoid using contraceptives, that’s morally repugnant, but is it rape? Or, say that I know that I am infertile, but fall in love with a woman who desperately wants children one day and so I keep my infertility quiet whilst a relationship develops, possibly over many years. The betrayal of trust is huge, the moral culpability high, but is every instance of intercourse between us rape?

Is this too subjective?

Criminal liability should flow from the actions of the individual. Here, if the victim did not mind about the gender of her partner, there would be no offence. Whether or not a deception removes consent does not depend on the defendant, but on the view of the victim as to the reasons why they consented – is that right?

How am I to know what specific factor (or one of many factors) is the reason that another person has sex with me? To me, the religion of a partner has no significance, but do I need to state what mine is in case that is something my prospective partner feels is vital? What else need I declare? How do I decide?

One answer is to be completely honest, but is that realistic? And the problem with allowing certain deceptions without being utterly clear about which ones are criminal is that we then move from legal certainty to a moral relativism that has no place in a Courtroom.

Impact on transgender rights

Transgendered people are still widely discriminated against. In many cases they face a huge level of open hostility. Against that backdrop, what level of openness should be required?

The Equality and Human Rights Commission has a good overview of transgender and transsexual rights. For obvious reasons, the law generally prohibits discrimination and gives a right to privacy for transgendered individuals.

Additionally, Parliament passed the Gender Recognition Act 2004. This gave recognition to the right of transsexual people to legally change their gender. There is a complicated process, but it is possible to obtain a Gender Recognition Certificate.

If that is done, then by virtue of s9(1)Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender“. Where does this ruling leave such a person? Legally, they are (for example) a man. Do they have to disclose their full history in the bedroom but nowhere else?

An alternative solution?

The law has always been clear that, unless there’s deception as to the nature of the act, or there is an impersonation of a known person, no amount of deception or fraud can turn otherwise consensual sex into rape.

I would suggest that that is correct and the law has taken a wrong turn with the Assange case (I don’t really buy the Court’s argument in McNally that the question was left open in EB) – a cynic may suggest that this related to political issues with Mr Assange.

Whatever the reason, what is needed is a proper debate and, if it is felt that deception should negate consent (and I don’t think that it should), then a separate offence of ‘sexual activity by deception’ be created. I’m not a fan of creating new laws, but here this would be the appropriate way forward. It’s for Parliament, not the Courts, to extend the law of sexual offences.