Tag Archives: sex offences

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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Coronation Street actor found not guilty of child sex offences

Michael Le Vell, best known as Coronation Street character Kevin Webster, has been found not guilty of child sex offences following a trial at Manchester Crown Court.

Photo: PA Wire

Le Vell, tried under his real name of Michael Turner, was acquitted of all twelve charges, including five counts of rape, three counts of sexual assault, two counts of sexual activity with a child and two counts of causing a child to engage in sexual activity. The jury took just over 4 hours to find him not guilty of all charges.

The complainant, now aged 17, told the jury that Le Vell put a teddy bear over her mouth whilst he raped her telling her he was “just getting rid of all the evil and bad inside me”. Her account was labelled inconsistent, unbelievable and lacking detail by defence barrister Alisdair Williamson. Reportedly there was no physical injuries to the complainant.

During the trial the jury heard personal details of Le Vell’s private life, including Le Vell’s alcohol addiction, one-night-stands and an affair.

Le Vell gave evidence during the trial and has always denied the allegations. He told the jury he was “fighting for his life”. Eleanor Laws QC, prosecuting, cross-examined Le Vell on his need to be persuasive in giving evidence, and compared it to an acting job. Le Vell replied:

“It’s nothing like an acting job. You never get put in a position like this. They never teach you to be here and face what I have been faced with for the last two years. No one can teach you that.

I’m fighting for my life.”

Of course it was not up to Le Vell to persuade the jury of his innocence. The burden of proof remains on the prosecution; it is up to them to prove the case beyond reasonable doubt, so that the jury are sure of guilt. If the jury are not sure, they will acquit, as they have done in Le Vell’s case.

Le Vell is expected to return to ITV later this year.

Paedophile receives suspended sentence after admitting sex with 13 year-old “predatory” school girl

“Predatory” isn’t a word often used to describe 13 year-old victims in sex-cases, but in the case of Neil Wilson, who pleaded guilty to having sex with a 13 year-old school girl, this is what the victim was described as, by both the prosecutor and the judge.

41 year-old Wilson received an 8 month suspended sentence for various offences, including taking a 13 year-old girl back to his home, allowing her to take off her school uniform and engage in a sex act with him.

This would appear to be an offence under Sexual Offences Act 2003 s 9 – sexual activity with a child. Penetrative activity with a child attracts a starting point of 4 years according to the guidelines (see page 53). The range suggested is 3 – 7 years. If the act is “contact between the naked genitalia of the offender and naked genitalia of the victim or another part of victim’s body, particularly face or mouth” then the starting point is 2 years and the range is 1 – 4 years.

In addressing the Court, the prosecutor is reported as having said:

The girl is predatory in all her actions and she is sexually experienced.

She appeared to look around 14 or 15 and had the mental age of a 14 or 15 year old despite being younger than that.

There was sexual activity but it was not of Mr Wilson’s doing, you might say it was forced upon him despite being older and stronger than her.”

Judge Nigel Peters told Neil Wilson, 41, he had also taken account the fact the child looked older. Prosecutor Robert Colover, told the judge: ‘The girl is predatory in all her actions and she is sexually experienced.’ Wilson lured the teenager to his home in Romford, Essex, where he watched her strip out of her school uniform before she performed a sex act on him. The abuse did not come to light until the girl confided in a friend who then told police. During a search of Wilson’s home officers also uncovered a stash of vile images and videos depicting child abuse and bestiality. He pleaded guilty to two counts of making extreme pornographic images and one count of sexual activity with a child and was handed a suspended sentence at Snaresbrook Crown Court. Judge Peters told him: ‘You have come as close to prison as is imaginable. ‘I have taken in to account that even though the girl was 13, the prosecution say she looked and behaved a little bit older. ‘You knew she was not nearly 16 as she said and your plea of guilty recognises that you knew. ‘Allowing her to visit your home is something we have to clamp down on and in normal circumstances that would mean a significant term in prison. ‘On these facts, the girl was predatory and was egging you on. ‘That is no defence when dealing with children but I am prepared to impose a suspension.’ – See more at: http://www.courtnewsuk.co.uk/online_archive/?name=predatory&sa=Search#results

These astonishing comments have sparked concerns that Wilson was sentenced on the basis that the 13 year-old victim was complicit in her own abuse, despite being well below the age of consent, and the 28 year age gap between her and Wilson.

Wilson was sentenced at Snaresbrook Crown Court by HHJ Nigel Peters, who said:

You have come as close to prison as is imaginable. I have taken in to account that even though the girl was 13, the prosecution say she looked and behaved a little bit older. You knew she was not nearly 16 as she said and your plea of guilty recognises that you knew.

Allowing her to visit your home is something we have to clamp down on and in normal circumstances that would mean a significant term in prison. On these facts, the girl was predatory and was egging you on. That is no defence when dealing with children but I am prepared to impose a suspension.

We don’t have full details of the extent of the offending behaviour, but The Independent has reported that eight images of child sexual-abuse and eleven sexual images involving horses and dogs were found on Wilson’s home computer.

As part of his sentence Wilson will be supervised by the probation service for 3 years, must attend a sex offenders’ program, is banned from contacting children and must allow the police to examine his computer.

Wilson now faces a review of his sentence by the Attorney General, who could refer the sentence to the Court of Appeal if it is believed to be “unduly lenient”.  We will know whether this case will be referred  within 28 days, whereon this post will be updated.

Man who set up ‘masturbation station’ near a primary school pleads guilty to child pornography offences

chained computer

 Stephen Conroy, 53, has pleaded guilty to a number of sexual offences including making and possessing indecent images of children and possessing extreme pornography.

The offences

Possessing extreme pornography is an offence under Criminal Justice and Immigration Act 2008 s 63. The maximum sentence is 3 years or 2 years where the image in question is not an image which portrays a) an act which threatens a person’s life, or b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals.

 There are several indecent image offences including:

1)     Criminal Justice Act 1988 s 160 (possession of indecent photographs) – max sentence 5 years

2)     Protection of Children Act 1978 s 1 (taking, distributing, publishing etc. indecent photographs) – max sentence 10 years

3)     Coroners and Justice Act 2009 s 62 (possession of prohibited images of children) – max sentence 3 years

It is not clear how many counts, or indeed which section he has pleaded to.

The (scarce) facts

He was found in possession of thousands of printed images, DVDs and videos of child pornography after police searched his home address in February 2013. There was reportedly pornography ‘plastered’ all over the ceilings and walls of three bedrooms. It is understood that some of the images are considered to be level 5 images of child pornography – the highest on the scale.

Additionally, police reportedly found children’s underwear and a school girl’s outfit.

The prosecution, presumably opening the case the judge (telling the judge what the case is about) stated that Mr Conroy had filmed children arriving at and leaving the primary school with which his house is in close proximity.

The prosecutor added: “There was a home-made masturbation device by a window which had a view of the street. In regards to the masturbation station, he admitted that is what he used it for,”.

 “Conroy told officers he thought the children in the images were innocent and beautiful and works of art but probably did not understand what was going on.

“He said he liked children and thought of himself as childlike.”

Conroy told officers he had started looking at child abuse images in 2006 and later searched for “school uniform porn”.

Sentence

Sentencing was adjourned, reportedly due to the unavailability of certain evidence. This is presumably so the correct basis on which to sentence Mr Conroy can be determined.

We will return to the sentencing when it is reported.

Further details can be found here.