This post is really an excuse to introduce this trailer for a forthcoming film,
The complete film will appear in a few months. Watch this space. With calls for juries to be scrapped in rape trials, and the new DPP, Max Hill, promising to continue his predecessor’s inadequate addressing of disclosure, the message of this film is of ever increasing relevance.
One of the surest signs of approaching totalitarianism is the corruption of justice. Here are some foundational principles of justice,
- Everyone is equal before the law, irrespective of race or creed or sex;
- Everyone has the right to be regarded as innocent until proven guilty;
- Everyone accused of an indictable criminal offence, and pleading not guilty, has the right to be judged by his, or her, peers – the right to a trial by jury;
- Everyone has a right to expect all available evidence and testimony to be brought before the court.
All these principles of justice, so long revered in this country, are either already being broken or are under imminent threat of being demolished.
Equality, but not as we know it
More men are convicted of crimes than women. Each year men are convicted of three times more crimes than women, or six times more if attention is confined to the more serious indictable offences. But there are 21 times more men in prison. Many people, including myself, have argued that this disparity is a long-standing gender bias in the courts which results in men being more readily incarcerated, and for longer, than women who commit similar offences.
Some will object that this is not gender bias but occurs because men’s and women’s patterns of offending are different, with a far greater proportion of men committing acts of violence, for example. In fact, men’s and women’s patterns of offending are very similar, whether judged by arrests (Figure 1) or by the proportion of prisoners, (Figure 2), data taken from here. These figures give the proportions of people of the same sex, not absolute numbers (which would be larger for men). But they reveal the patterns of offending between different offence categories, which are similar for the two sexes (sexual offences aside). In particular, the commonest reason for a woman to be arrested is for an act of violence, as it is for men. And the commonest reason for a woman to be in prison is for violence against the person, as it is for men.
Figure 1: Proportion of arrests in each offence category, by sex (click to enlarge)
Figure 2: Proportion of prisoners in each offence category, by sex
Over and over we have been told that the criminal justice process treats women more harshly than men. We were told, for example, that women are twice as likely as men to be imprisoned for a first offence. The reverse is the case, as Figure 3 shows. Men are nearly twice as likely to be imprisoned for a first offence, whilst women are more likely to get a suspended sentence and twice as likely as men to receive a conditional discharge for a first offence.
Figure 3: Proportion of first-time offenders sentenced in various ways, by sex
You will be told that 75% of women prisoners are mothers, and that incarceration is therefore inappropriate. In fact the Equal Treatment Bench Book, which is the formal guidance to judges on equality matters, sanctions childcare responsibilities as a valid mitigation. It has done for a very long time, and this mitigation is applied practice. Ministry of Justice data published in 2015 indicates that, in reality, “between 24% and 31% of all female offenders were estimated to have one or more child dependants”. But most of these will not go to prison, in some cases because of the operation of the childcare mitigation. The MOJ report states that, “among the different disposal types, women receiving immediate custody were significantly less likely to have child dependents (between 13% and 19%)”. We may conclude from these data that having childcare responsibilities reduces a woman’s likelihood of being sent to prison to about 60% of what it would have been otherwise, so this mitigation is already taken into account. And the proportion of women sentenced to prison who have dependent children is between 13% and 19%, not the 75% one hears stated on media programs.
But we have gone beyond claims that women in the criminal justice system are more harshly treated than men. Instead, a version of “justice” which differs by sex is now openly espoused.
Lord Chancellor and Secretary of State for Justice, David Gawke, announced in June that the new policy will be to avoid custodial sentences for women except as a last resort. The plan to build five new “community prisons” for women, following the closure of Holloway, has been scrapped. The build programme for additional men’s prisons continues.
Let me acquaint you with the feminist definition of equality. It is this..
“Equality does not mean treating everyone the same”
…a view expressed and popularised in 2007 by Baroness Corston in her influential report on women in the criminal justice system. Another quote from the Corston Report is,
“Prison is disproportionably (sic) harsher for women because prisons and the practices within them have for the most part been designed for men”
This says that prison is harsher for women because it’s the same as it is for men. Can one sue for damage to one’s logic module?
Corston was by no means the first to express this feminist concept that “unequal is equal”. Baroness Brenda Hale, now the President of the Supreme Court and the most senior judge in the land, said this during her 2005 Longford Trust Lecture,
“It is now well recognised that a misplaced conception of equality has resulted in some very unequal treatment for the women and girls who appear before the criminal justice system. Simply put, a male-ordered world has applied to them its perceptions of the appropriate treatment for male offenders…. The criminal justice system could … ask itself whether it is indeed unjust to women.”
In other words, Baroness Hale is claiming that it is unjust to women to treat them like men, the same sentiment as Corston. You may find that you are yourself suffering from the very same “misplaced conception of equality”, namely that equal is equal rather than unequal. But do not imagine that this brave new conception of equality is confined to a few unrepresentative women – even if they are both in the House of Lords and one is the most senior judge in the land. On the contrary, this view is official judicial policy. It is enshrined in the Equal Treatment Bench Book, the guidance to judges on equality matters. Here are some quotes from it,
“’True equal treatment may not, however, always mean treating everyone in the same way. As Justice Blackmun of the US Supreme Court commented: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”’
And the guidance that “true equal treatment may not always mean treating everyone in the same way” is repeated explicitly in the Bench Book in the context of gender. This is how far the rot has spread.
This is now the firmly embedded conception of justice. Just a few days ago, the QC, Baroness Kennedy, told the annual Bar conference in London, “Lawyers and the courts have a responsibility to give women their rights”. Otherwise, she warned, referring to the #MeToo campaign, women would take the law into their own hands. She added, “to do justice, you have to look beyond the courtroom doors. Saying that rules are rules and imposing the same sentence as men was not good enough”. Digest that. A QC is telling us that, if the justice process has the temerity to treat one group of people the same as another, then they can expect trouble until the justice process capitulates.
We’ve got the message. As a man I can expect to be treated more harshly simply on the basis of my sex, and I am to consider this “equality”. But what if I am not content with this, Baroness Kennedy, Baroness Hale, Baroness Corston, and the entire establishment behind the Equal Treatment Bench Book? What if men find out what you’ve been up to? What if we decide to ditch your damnable society altogether?
As always with feminism, there is some jargon to go along with this distortion, to portray unbelievers as lacking the sophistication of their feminist betters. Let me introduce you to the concept of “distributive justice”. Curiously, in a broader social context, this term is usually defined thus,
“Distributive justice concerns the nature of a socially just allocation of goods. A society in which inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice.”
So, distributive justice is yet another code for equality of outcome. At least, this is how it is defined when it applies to the allocation of “goods” in society. Curiously, though, when it is applied to criminal justice, it takes on the opposite meaning – avoidance of equal treatment. Here is an extract from a paper published in the British Journal of Criminology by sociologist Carly Lightowlers in October this year,
“Broader feminist debates surrounding the administration of justice have traditionally centred on notions of ‘equality’ and ‘social justice’, highlighting the way in which women are often more disadvantaged and unequal before they even encounter the law and experience penal sanctions as harsher than men. Related critiques of the criminal justice system have highlighted how administrative practices are linked to deep-seated assumptions of gender based roles and behaviour, and masculine conceptions of justice based on legal and procedural equality. Feminist scholars also spotlight how more feminine conceptions of justice, such as ‘social’ and ‘distributive’ justice, are relatively absent in sentencing guidelines and wider criminal justice policy, given that white middle-class men remain overwhelmingly the guardians of justice.”
“When it comes to sentencing, equality of outcome (e.g. sentence length and/or severity) on average between men and women is not necessarily the correct goal to strive for.”
The concept of distributive justice seems rather elastic. One cannot escape the conclusion that it actually means whatever preferences the chosen in-group in the context in question.
Guilty until proven innocent without benefit of evidence
But we’ve not got to the worst corruption of justice yet. This is manifest in sexual assault allegations. The confidence of the public was (rightly) shaken in late 2017 by a sequence of rape trials which collapsed due to revelations of disclosure failures.
The public are quite ignorant of the process by which evidence gets placed before the court. Perhaps they think that a Perry Mason figure hunts down the evidence Hollywood-style. No, it depends upon the police. The police are supposed to collect evidence in a neutral, unbiased manner – -irrespective of whether it assists the prosecution or the defence – and then to “disclose” it to the solicitors involved. (Formally to the prosecution solicitor, who is obligated to pass it on to the defence). The entire process is dependent upon the police. Are you worried now?
It’s not as if the police have been subject to training by partisan parties, or anything.
The police may simply not do the work necessary to flush out the evidence. How would you feel if the only thing between you and a ten year stretch was the hope that the particular policeman, or woman, could be bothered? But if success is measured by convictions, why would the police try too hard to find exculpatory evidence?
The clinical sounding term “disclosure failure” actually means that the police have relevant evidence but fail to pass it on. The real issue underlying the recent cases where disclosure failure was discovered is the concern that there have been large numbers of cases previously where disclosure failures were not discovered, and innocent men have gone to prison. In fact, it is a certainty that this has happened, and probably in hundreds of cases (at least).
As an example of how the attitude of the police can completely subvert proper judicial process, here’s an example from a few days ago – albeit from New South Wales. Anthony Sampieri had been accused of raping a young girl in a toilet. He had previous convictions for rape. The arresting police Commissioner, Mr Fuller, was quoted as saying, “My number one priority is making sure that Sampieri dies in jail. I will make sure that the investigation, that all of the evidence that goes before the court, sees him never back on our streets again”. You see the problem with that? Of course it may very well be that Sampieri is a dangerous and wicked man who eminently deserves to go to prison for the rest of his life. But the job of the police is not – as he openly confesses here – to ensure that the evidence which goes before the court will guarantee a conviction. He has the power to do that. But it is not his job to decide guilt himself, then manipulate the court via the evidence presented to gain a conviction. Under these conditions the responsibility of the court has been subverted. This is what happens in cases of disclosure failure.
In January and February this year (2018) I posted a series of articles on sexual assault cases, confining attention to the UK. In the first article I trawled news outlets to identify cases of false allegations of sexual assault, mostly alleged rapes. I deliberately excluded celebrities and politicians from this first trawl, identifying 146 recent cases of false allegations (106 between 2013 and January 2018). The 146 cases involved 16 deaths. 12 of these were the suicide of the wrongly accused, one was the suicide of the falsely accused’s mother, one was the suicide of the alleged false accuser, one was a homicide due to vigilante action, and one was the death in prison of an innocent man. At least 28 of these cases involved disclosure failures (possibly more but news reports are not always explicit). 25 cases involved serial accusers, 14 of them had accused more than two men.
The most shocking thing about these 146 cases is how they undermine your faith in British justice (if you had any – I used to). The judiciary and the criminal justice process have allowed a situation to develop in which an allegation alone is sufficient to get you convicted and banged up for a very long stretch – in the case of sexual assault. The public’s naïve faith that independent evidence must surely be involved is ill-founded. The principle of innocence until guilt is proven has been replaced in these cases with an obligation on the accused to prove his innocence, a catastrophic reversal of justice.
This would be bad enough, but coupled with disclosure failures, which deny men the evidence needed to prove their innocence, the process becomes a show trial and justice is dead.
You will not necessarily be convicted in such cases, but you are at the mercy of the jury’s opinion as to which person is more credible. The jury is also your only hope of acquittal.
This is why Alison Saunders’ expressed opinions were so dreadful. She said, “There is no legal requirement for victims’ accounts to be corroborated by a third party and it is ultimately up to a jury to decide guilt or otherwise based on all the evidence presented to them”. That is true, but the process only works if all the evidence is presented. But Saunders also denied that trawling the complainant’s social media was necessary – even after the collapse of several trials where social media provided definitive exculpatory evidence which had not been disclosed by the proper process.
My other two articles related to alleged sexual offences by celebrities and also by politicians. Unlike the previous article, I was concerned in these cases with all allegations, whether false or true.
Taking the politicians first, a criterion of “sufficient severity” had to be defined in order to exclude the myriad of allegations emerging from the post #MeToo progrom in Parliament, many of which would have been childish if made by school children. I set the bar at those cases in which the police have been involved, whether or not charges were forthcoming, plus cases which led to sackings or enforced resignations or suspensions. The latter sets the bar well below the criminal level. Local government officials, Mayors and local Councillors, were excluded, but members of the House of Lords were included. Any sexual allegation was included, many minor, many historical.
I identified 25 cases (there have been more since). Of the 25 people whose cases I reviewed, my summary was as follows,
- Only two resulted in criminal convictions (Phillip Lyon and ex-Bishop Peter Ball, both imprisoned);
- A further two remain unresolved currently but are being considered by the IICSA and I expect the outcome to be damning (Lord Janner and Cyril Smith);
- Four cases remain unresolved but my reading of them is that they will ultimately exonerate the accused of criminal wrongdoing, or remain unresolved (Carl Sargeant, Charlie Elphicke, Kelvin Hopkins and Bishop George Bell);
- Four men were sacked for alleged misdemeanours which were not criminal (Sir Michael Fallon, Damien Green, David Meller and Lord Mendelsohn);
- The remaining 13 people have been declared innocent of the accusations.
Of the 13 people declared innocent, only five involved a scheduled trial, resulting in exoneration of the accused or conviction of a false accuser. In the remaining eight cases no charges were ever brought. In summary, if pushed to judge the 24 men and one woman as either “guilty of a criminal offence” or “not guilty of any criminal offence”, I’d say 4 guilty and 21 not guilty. You may come to your own view, but the rate of false allegations seems very high indeed – at least as judged by a criminal standard.
As for celebrities, I identified 45 cases. Which were truly guilty and which innocent? One has to be mindful that guilty men may be acquitted – and also that innocent men may be convicted. I can only give an opinion based on the news reports. See my review of celebrity cases and judge for yourself. Of the 45 celebrity cases, my opinion at the time was that 12 men were guilty, 29 men were innocent, and in 4 cases the matter was not clear. You may judge it differently. However, it is clear that the innocent out-number the guilty by some considerable margin. (And I should add that one of the men I counted as guilty, Jonathan King, I am no longer so sure about. I may owe Mr King an apology after reading the book The Nicholas Cases by Bob Woffinden).
The proportion of false accusations in the celebrity and politician cases is very high (73% and 84%), though I should add that some of these are not so much “false” as “below the criminal level”. One cannot read across from this to the general public, because famous men will have a target on their back. Nevertheless, when coupled with how easy it was to compile 146 cases of false allegations amongst the general public, one comes away from this exercise rather concerned.
No Jury, No Exculpatory Evidence, No Justice
My concern is now greater than it was in February. I never put any faith in the review of cases which the police were supposed to be carrying out. The problem is of such a magnitude that a whitewash was always inevitable. One might have hoped, though, that even if the currently incarcerated innocent men were not to be helped, at least the process could now be corrected for future cases. But just as Alison Saunders was arguably no worse than her predecessor, Keir Starmer, so her successor, Max Hill, is no better.
The hope that the process might be corrected were dashed by Max Hill in his first speech as DPP. “We shouldn’t be trawling rape victims’ phones” ran the headline. (Yes, as usual, they used the word “victim”, not “complainant”). Hill claimed he wished to restore public confidence in the CPS after the prominent cases involving disclosure failure. He had a peculiar way of going about it. Hill insisted that prosecutors were not obliged to trawl through the mobile phone records of all rape complainants as they struggled to cope with the rise in the volume of digital evidence. He was quoted as saying, “seeking to examine the mobile telephones of complainants and witnesses is not something that should be pursued as a matter of course in every case. It is of vital importance that the personal information of those who report sexual offences is treated in a way that is consistent with both their right to privacy and with the interests of justice”. The accused will not be treated with such concern. He will be intimately examined and forced to provide samples. Nor will his privacy – or his welfare – be in any way respected. It is clear that the roulette wheel of sexual assault cases will continue to roll.
The difference, now though, is that too many people know that the system is crooked.
But the odds are stacked against the defendant. The police will, I have no doubt, continue to impound mobiles, laptops, etc. The defence will not have access to them. So the defence will be stymied. Those who still believe in British justice need to wake up.
And finally…we have the ever increasing calls to do away with the jury in sexual assault cases. This would be the coup de grace for the feminists. And when did they ever fail? Julie Bindel has, of course, been calling for just that for many years. But now we have an MP, Ann Coffey, also calling for juries to be scrapped in rape trials. Her alternative was juries consisting only of specially vetted members. Can’t see any problem with that, can you? She also suggested the pre-recording of the cross-examination of the accuser, thus also subverting the principle of the accused being permitted to face his accuser.
In Northern Ireland, the retired judge Sir John Gillen recently called for better training for rape juries. Well, that would depend upon exactly what “training” was envisaged, and by whom. But we know “by whom”, don’t we?
In May this year, the QC and tax barrister, Jolyon Maugham, also expressed sympathy for the idea of scrapping juries in rape trials. “The legal system isn’t biased against men, it allows them to rape with near impunity”, he claimed. “It is not good enough for us to repeat the saying that it is better for ten guilty men to escape than one innocent man to suffer”. I beg to differ. Whilst one may be concerned if villains are going free, that principle absolutely should be upheld – and it was far wiser men than Jolyon Maugham who created that principle in the first place. Mr Maugham is perhaps overly confident that he will not be accused himself.
Restoring one’s faith that the corruption is not universal, Matthew Scott, a criminal barrister at Pump Court Chambers, writing in The Spectator, reminded us that scrapping juries in rape trials would be a mistake. But he left us with a stark warning,
“A future Labour government may be very receptive to the abolition of juries in rape cases. It would be taken up by many on the left as a progressive measure to help rape victims. What’s more, because jury trials are more expensive than judge-only trials, it would be enthusiastically implemented by a civil service long inclined to seeing juries (and even legal representation itself) as a dispensable luxury. Once rape juries have gone, juries in all other cases will not be far behind.”
This seems all-too-probable.
Quotes – It isn’t just MRAs saying so
I close on some quotes from solicitors and barristers. Firstly, solicitor Matthew Graham, from January this year,
“This isn’t a story of a few rogue cops gone bad, or a crumbling, underfunded criminal justice system overwhelmed by national austerity (though both get blamed daily in courts and the press to cover a wider, more difficult truth). This is a story of a state funded system designed with political ends in mind to convict those accused of crime, because once a person is charged they must be guilty, if only the Crown can prove it.
The job of the police is to investigate whether or by whom an offence has been committed. They have a legal duty to investigate all reasonable lines of enquiry, whether they point towards the guilt or innocence of a particular suspect. It sounds simple, but if you are a suspect in a criminal case you need to understand that this isn’t how it works…..
Inconvenient evidence that would undermine a prosecution or assist a suspect doesn’t achieve either of those aims, so it doesn’t have any real importance. As soon as the police think it is their job to catch the criminals, the system goes wrong, because it is they, not a court or a jury or anyone independent, who is deciding on who is a criminal and then setting about proving it….
Pity those, and there are many, who didn’t get the disclosure they deserved. Pity those suspects where the police hold or could hold evidence that helps their case that they don’t know about. An extra witness here. A useful 999 call there. Social services records. School reports. Text messages. Emails and social media content. And ever on. And more fool those who expect a court to help their quest for fair disclosure. Expect to be met with apathy at best, more likely positive resistance. Expect to be told you are simply fishing for a loophole. Expect to have to justify the relevance of the material you have never seen. Expect the court to wholly accept a bland assurance of a prosecutor in court that never comes to fruition. Expect excuse after excuse after excuse and expect no one in authority to care one bit. And when you reach the day of trial without having received what the law says you should, expect the trial to carry on all the same. Because this is what happens in cases every day, all over the country, in magistrates and crown courts.”
This is not new. In 2006, solicitor Chris Saltrese ended up handling cases of alleged sex crimes only because it became obvious to him that there was an injustice of colossal proportions taking place. Mr Saltrese believes that there are “certainly scores, and very possibly hundreds” of men who have been convicted of sexual crimes who are rotting in prison with no prospect of release, but who are not guilty and should never have been sentenced. “They were convicted on their accusers’ word alone. The records that might prove their innocence have been lost or destroyed. There is literally nothing they can do to prove that they did not do what they have been accused of doing except reiterate that they did not do it. And that, of course, is not enough.”
In an excellent résumé of the Liam Allan case, Matthew Scott, the Barrister-Blogger, sums it up, “Despite the magnificent performance of Mr Hayes (the prosecution barrister who insisted on proper disclosure), a case like this ought to shatter any remaining illusions that the English and Welsh criminal justice system is fit for purpose.”
Lawyer Nick Freeman has called for people who make false rape and sex assault allegations to be stripped of their statutory anonymity and named on a public register. “The time has come for there to be a register where the names of those who make these disgraceful and disgusting allegations are added. Sadly, Mr Allan’s case is not a one off. It is one of many – the tip of the iceberg. False allegations are made on a daily basis, and those who make them can hide behind a lifelong veil of anonymity.”
So finally, a reminder to watch this trailer for the forthcoming film,
…and watch this space.