Tag Archives: Dave Lee Travis

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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Dave Lee Travis acquitted of historic sexual offences

Photograph: Matthew Lloyd/Getty Images [From The Guardian]

Photograph: Matthew Lloyd/Getty Images [From The Guardian]

On 13 February 2014, Dave Lee Travis – real name David Patrick Griffin – was acquitted of 12 counts of indecent assault. The jury were unable to reach a verdict on the final indecent assault count and the sexual assault count. The CPS have seven days to decide whether they wish to pursue a retrial on those two counts.

He stood trial accused of 13 counts of indecent assault and one count of sexual assault against 11 women.

He pleaded not guilty to all counts.

The alleged offences

Indecent assault was an offence under Sexual Offences Act 1956. That was repealed in 2004.

Sexual assault is an offence under Sexual Offences Act 2003. That came into force in 2004.

The reason for the different counts is that the single allegation of sexual assault relates to alleged behaviour after 2004. All other counts relate to alleged behaviour before 2004.

Both indecent assault and sexual assault encompass a very wide range of behaviour. Indecent assault can include penetration. After 2004, penetrative behaviour would be charged as assault by penetration (a more serious offence than sexual assault).

Background

He was a radio DJ and TV presenter in the 1970s and 1980s, best known for presenting the breakfast show on Radio 1 and Top of the Pops.

Allegations

The complainants alleged that DLT engaged in the following behaviour:

  • Groping a radio announcer’s breasts whilst she was on air.
  • Touching a journalist’s bottom whilst she was at his house to conduct an interview.
  • Touching a girl’s bottom whilst dancing at two British Airways parties.
  • One of the complainants was aged 15 at the time of the alleged

This may appear to be a bit vague, but it is hard to get exact details of each allegation.

DLT’s evidence

The Mirror reported that he admitted being tactile but denied being predatory:

  • “Perhaps hugging is something which can be misconstrued by some people or if people are looking for an excuse they can say ‘he touched us’. I did hug a lot girls.”
  • “I do not have a predatory nature with women, I have a cuddly nature.”
  • “Maybe that’s what this is all about, but I am not predatory.”
  • “If I really like somebody I will put my arm around them and I might give them a peck on the cheek, I even do that with men, to make them feel comfortable and welcome to the place.”
  • “But nowadays you are not allowed to do that, put your arms around people and hug them.”

Additionally, in his police interviews, DLT commented that perhaps the complainants were fabricating the allegations in order to ‘jump on the bandwagon’. The Mirror reported that in interview, he said:

  • “Why wait 20 years until it comes out in one-sided press coverage?”
  • “This is just someone else who can smell money and is jumping into the game to see what they can get out of it.”

Readers will no doubt remember the LCJ’s comments in the Stuart Hall Att-Gen’s Ref case where Hall was severely criticised for making public statements labelling the complainants as liars. Had Dave Lee Travis been convicted, this may have been taken into account by the sentencing judge. In my view that would have been wrong for two reasons. The first is that DLT seems to have only made these comments in his police interview, not to the press (though they have been reported) and secondly that there is a principle that a defendant should not be punished for the way he or she conducts their defence. The ‘punishment’ for not telling the truth is the loss of credit for a guilty plea. The fact that a defendant has lied giving evidence or lied in police interview should act as a factor by which to increase the sentence.

The jury note

On the morning of their third day of retirement, the jury sent a note to the Judge that caused a fair amount of interest on the internet :

This appeared to be a bad sign for Mr Travis. However, the verdicts were not delivered until the next afternoon. As jury deliberations are secret, we will never know what the significance of this question was.

Majority direction

On 13 February 2014 at about 11.50am (after about 19 hours of deliberation) the jury were given what is known as the ‘majority direction’.

A jury will be told when they first retire that they must reach a unanimous verdict. Since 1974 juries have been allowed, in certain circumstances, to reach a majority verdict. This is a verdict of 11-1 or 10-2.

When the Judge gives a majority direction, s/he will tell the jury that they should still try and reach a unanimous verdict. The jury will then go and think about it and can return a majority verdict if the numbers are as above.

Maximum sentences for the offences

It is important to remember that historic allegations are sentenced on the basis of the law at the time, that is to say, the penalties are as they were at the time of the offences.

The reason for this is that there is a principle of law against retrospective sentencing which prohibits imposing higher sentences than were available at the time the offences were committed. That means that the Judge is restricted by the maximum sentence at the time, he or she does not need to estimate what the defendant would have been sentenced to if the defendant was sentenced at the time. (See below for more details)

Indecent assault

For indecent assault, the maximum sentence depends on the gender and age of the victim:

Female victims, offence committed on/after 16 Sept 1985 10 years

Female victim, offence committed prior to 16 Sept 1985 five years, if the girl was under 13, otherwise two years’

Male victims 10 years

Sexual assault

For sexual assault, the maximum sentence is 10 years.

The law in this area is complicated and advice should always be sought. For our Australian readers, NSW firm Prime Lawyers offer information and guidance on the issues surrounding sexual offences.

The approach to sentencing historic sexual offences

Here are some basic principles from the guideline case on sentencing historic sexual offences, R v H 2012 2 Cr App R (S) 21:

1) The offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred.

 2) Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed.

 3) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in (2013) what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.

 4) Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.

 5) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability.

Here is more information about prosecuting and sentencing allegations of historic sexual abuse.

Sentencing for sexual assault

DLT would have been sentenced according to the existing sentencing guideline for sexual offences. This does not apply to indecent assault. It will remain applicable until 1 April 2014 when the new guideline will come into force.

The guideline that applies to sexual assault is here (see numbered page 31 onwards)

Consequences of a conviction for sexual offences

Generally, a conviction for a sexual offence results in the offender being placed on the sex offenders register. This is known as ‘notification’ as the offender has to notify the police of certain details such as where he or she lives, if they are staying away from their main address, their bank details etc. The length of the notification depends on the sentence they receive. There is fact sheet here.

Offenders convicted of sexual offences usually are able to be made subject to SOPOs – Sexual Offences Prevention Orders. There is a factsheet on SOPOs here.

Indecent assault

In relation to indecent assault, a SOPO may only be made if the victim is aged under 18 or the offender is sentenced to 30 months or more.

A conviction or caution for indecent assault will result in the offender’s inclusion on the adult and child barred list subject to the consideration of representations. This means that they will be prevented from working with children and vulnerable adults, but they do have the opportunity to make representations as to why such a prohibition should not apply to them.

Sexual assault

A SOPO may be made where the victim was under 18 or the offender was sentenced to imprisonment or a community order lasting at least 12 months.

As with indecent assault, a conviction or caution for sexual assault will result in the offender’s inclusion on the adult and child barred list subject to the consideration of representations.

What now for DLT?

The Prosecution have a week to consider whether they wish to have a re-trial on the two counts on which the jury could not agree. We will look at this in a bit more detail next week.

This news piece was made possible by Prime Lawyers.