by frog
Following discussion on Russel’s previous post, Nandor, our Justice Spokesperson, thought it was worth while to give some more detail about how the law of evidence in relation to sexual history of complainants has just been tightened by parliament. The trial in which Louise Nicholas was the complainant helped inform the select committee during our deliberations.
Clause 44 Evidence of sexual experience of complainants in sexual cases
(1)In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
(2)In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3)In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
(4)The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).
(5)In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
(6)This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.
NB My understanding is that prior to this change, such evidence was governed by the same rules as applied to evidence about the general credibility of witnesses – an unsatisfactory situation because it was easy for lawyers to circumvent in order to attack the reputation of rape complainants.
In relation to the rules about previous convictions, I think it comes under propensity rules ie. Evidence that a defendant has a propensity to do what they are accused of:
Clause 43 Propensity evidence offered by prosecution about defendants
1)The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
2)When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
3)When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurr
(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusu
(4)When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a)whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
So previous convictions might be admissible under propensity rules, but it is at the discretion of the judge. I think that has been the case for some time, but I don’t know if the prosecution applied to introduce the evidence of previous convictions in this latest case.
Clause 49 is about “Conviction as evidence in criminal proceedings ” and says that
(1)Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence….
(3)A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.
But although such evidence is permitted under clause 49, it would be excluded by the propensity rules and the requirement to first inform the judge the purpose of using evidence of previous convictions in subclause 3 stops lawyers circumventing clause 43.
So….hope that helps
Published in Justice & Democracy by frog on Tue, March 6th, 2007
Tags: environment
on the trolls and those who are unable to keep on topic
wow, that’s so wrong.
a grossly ill-thought out piece of legislation.
so i take it that dna/medical evidence from examination of the complainant can not now be included, because to do so would be to ASSUME that the defendent was the one involved.
(without that assumption you could be giving evidence relating to the sexual experience of the complainant with another person, right)
just another milestone in the gradual attack on the jury system, i guess the MPs who voted for this also voted for jury majority decision.
“3)When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurr”
yeah, they meant “are alleged to have occurred” right?
that sums up the sloppy legal thinking that went into this travesty
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This is just another facet of an underlying problem with our (and many other countries’) justice system.
There is a general uneasiness amongt the public that conviction rates are too low, and it could be argued that the trial in the media at the moment could be considered an example. The public as a body think that if the Crown have got as far as a prosecution then the court should really just be checking the evidence, and rubber stamping a guilty verdict.
When you actually get to sit in court for a bit and watch a few trials it’ll become clear why people get found not guilty; an awful lot of prosecutions are speculative prosecutions, that have insufficient (or zero) evidence which would lead to the observer thinking that a guilty verdict would be madness. But even in these specualtive cases, the surprise is juries find people guilty on no evidence. Based on my jury service, I was stunned to hear arguments put forward in the jury room along the lines of “he looks the type”, and other arguments based on race. While this type of prosecution continues to occur, unfortunately, people will be found guilty inappropreatly.
In the current case it seems (and this is just the court of TV and an armchair jurist talking here) that there was no evicdence, it came down to a he said / she said, and that must be the most unsound basis for a conviction for any crime, especially given the inability to put such matters right.
The concept of justice globally is being done away with as it’s inconvenient, words like double jeopardy and habeas corpus spring to mind…
What I’d like is for there to be an published enquiry into every not guilty verdict, as you could argue each not guilty verdict is a failure for the prosecution to do their job. In business when you fail to win you dont just say “oh well”, and move on to the next job, you find out where it went wrong, and fix it. Adopting a winning approach to appropriate prosecution may reduce the number of cases that get to court, but actually increase the number of sucessful prosecutions, and reduce the number of appeals through doing the job better first time round.
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Andrew, don’t be a plonker. DNA evidence is hardly evidence about the sexual experience of a complainant. It is physical evidence, from which various conclusions might then be deduced.
dbuckley, I agree with you about the concept of justice being under attack globally – and Andrew about the Criminal Procedures bill (majority verdicts etc) currently before parliament. Proceeds of Crime legislation is even worse in my view – the proposal is that if the Crown fails in a criminal prosecution, they can have another go by seizing the defendants assets on a civil burden of proof (ie balance of probabilities).
As I said under Russel’s post, I would have been surprised if a conviction had been secured in the cases under discussion – because of the difficulty in proving beyond reasonable doubt in the circumstances. I’m not sure I agree with Andrew’s suggestion about a ‘winning approach’ to prosecutions though – I’d be far more worried if we had 100% conviction rates.
However I do strongly support the establishment of a Public Prosecutors Office, to take the decision to prosecute or not out of the hands of the police. The job of the police is to gather evidence, but they are not always in the best position to decide whether to prosecute.
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excellent points dbuckley… I agree Nandor about the public prosecutor’s office, but I’m not sure this goes far enough.
I think the fundamental flaw is that investigations are conducted exclusively by the police, with the sole functional objective of obtaining a conviction.
An actual justice system needs more independence than that. In the French system, for example, an investigative judge compiles the evidence, both for and against, then hands it over to the prosecution and the defence for trial, if there is a case to answer.
For all its flaws (the main one is that suspects are routinely locked up for months, even years, before trial while investigation goes on), this system has a much lower rate of unsafe convictions.
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nandor, dna evidence is evidence of the complainant’s general sexual history unless you assume that which must be proven: that a rape occurred and that the defendent was the guilty party. such an assumption violates the presumption of innocence.
i made this point merely to show how poorly thought-out this legislation was: those who intended to bias justice against defendents have shot themselves in the foot by making evidence of the alleged crime itself inadmissable.
my main point is not about how legislation aimed at restricting the evidence which can be brought by the defendant will also, if read literally, restrict the evidence which can be brought by the prosecution.
my main point is that it is unjust and immoral to legislate an anti-defendant bias into trials.
the fact that you feel confidant that prosecution evidence will still be admitted only underlines the expectation that this measure will operate against defendants.
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I agree in part with Alistair’s comment about “the French way”; One of the inequities of the standard English based system is the comparative scale of resources available to the prosecution and the defense. All the cards are in the prosecutions hands, and they have state level resources to investigate and prosecute. A vanishingly small number of defendants have that scale of resources available to them.
I’m with Nandor in the establishment of a prosecutors office. The separation of duties seems the right approach. Of course, this doesn’t alter the underlying problem that the prosecution are more interested in “a result” than the truth, any conviction will do…
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“because it was easy for lawyers to circumvent in order to attack the reputation of rape complainants.”
Surely, when it comes down to a complainant saying “it was rape” and a defendant saying “no it wasn’t” the reputation of the complainant is paramount. It’s fair enough to use suppression orders to protect a complainant from public scrutiny, but if a jury considers a person’s character (including the detail of their sexual history) introduces reasonable doubt then so be it.
The point of having a trial is to prevent false convictions, after all, not to coddle complainants.
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tussock Says: …but if a jury considers a person’s character (including the detail of their sexual history) introduces reasonable doubt then so be it.
I vehemently disagree, because this presupposes a raft of sexist and moralistic judgements about what it means for a woman to give her consent to the act of sex on any particular occasion…
Such as that if a woman behaves in an overtly sexual manner towards a man then she has given him consent to have sex with her later. Or that if a woman had consenting sex with a man on a previous occasion then she is has forfeited her right to decline sex with him at a future date. Or that if she’s had numerous previous sexual partners then she must want to also have sex with any old bloke who wants it from her as well. Or that if she has experimented with different styles of sexual expression then she must really like it kinky, or rough, or in packs, or that her “no” really means a “yes”.
It basically upholds the tired old misogynistic myth that women who enjoy sex or expressing themselves as a sexual being are asking to be seen as fair game for whatever horny male happens to be in the vicinity – which leaves the only groups of women who are exempt from your model of “reasonable doubt” that they declined consent (or didn’t just change their mind about it after the fact) as being the very very young or the very very old – and that is a stereotype that stinks to high heaven.
The bottom line is that if a man has sex with a women (whether he forced her physically or coerced her by threat) and that woman did not want to have sex with him at THAT time (regardless of whether she is a madonna or a whore) then it is RAPE. No means NO and that is THAT and no accounting of her past behaviour (virtuous or otherwise) has any bearing on what that “no” means at THAT point in time.
What you are suggesting here as being “coddling of the complainants” is in actual fact a coddling of the pathetic pornographically-inspired delusions that exist in the minds of some men that they think they know when a woman wants to be “taken” by them sexually.
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