Sexual Offences: Are too many baseless allegations being charged?

by Ray_North on September 30, 2013

Unknown-3To answer my own question – I don’t know.

It is, without doubt, one the trickiest questions currently being posed within the criminal justice system and I’m not even sure I’m particularly well placed to answer it; after all, as a criminal Barrister, I am, but a hired gun, someone brought in to present a case for either the prosecution or the defence, leaving the jury to concern themselves with the matter of guilt or innocence and the CPS to concern themselves about who is or isn’t charged (we may have a view, but it isn’t often sought).

But, I am currently troubled by a number of things: first, is this, in the last couple of years there has been a marked and significant increase in the number of allegations or rape or sexual assault that have found themselves in court. I don’t know whether it is mere coincidence that this time scale correlates quite nicely with Jimmy Saville and the accompanying Yewtree Investigation, but we are now seeing more and more of them. Now, it may be that this is because more people feel confident enough to come forward and report crimes that were not reported before or it may be that Police and CPS are under more pressure to charge than they were before, because they are nervous of being the force who let the serial paedophile run free – I don’t know – perhaps the answer is a little bit of both.

Second, is the fact, that many of these cases are being pursued with little hope of conviction. Long gone are the days in which a rape or sexual assault had to be corroborated by other evidence or witness accounts – and quite right too. But, there is now a tendency to go the other way. The evidential test for a CPS lawyer is is there a fifty percent or more chance of conviction. In a case where it is essentially one persons word against another, it is fairly easy for a CPS lawyer to say, well, there’s an evens chance of conviction, let’s just go ahead. And in some cases that’s probably the right approach, it is a task of putting defendant and alleged victim before a jury and saying, well, you decide, who do you believe. But, in adopting this approach there is also the danger of either a miscarriage of justice or putting someone through the awful experience of having to give evidence of fairly horrible events without any real prospect of a conviction – which can be cruel.

And, herein lies the dilemma for the CPS and the Police, do they take a robust approach and tell someone who is alleging awful rape or sexual misconduct that they are not going to press ahead because there is no prospect of success or do they just go ahead with cases where there are actually evidential problems.

It’s a very difficult call, one that is not made any easier by the current clamour to charge everything remotely resembling a sexual offence – politicians, the media and pressure groups appear obsessed with sex and the need to prosecute, often when the evidence isn’t there.

And I can understand this – anyone who hears an allegation of sexual assault or rape, especially if that allegation comes from a child or is recounted from childhood, will find it near impossible not to be sympathetic. But, sympathy isn’t enough – for someone to be charged, there must be good enough evidence or some other element within the case that makes it ring true.

And therein lies another problem -in cases such as these, there may be very little evidence one way or another whilst the ‘does it ring true’ test is a matter of judgement.

So what does a lawyer do? Just forge ahead? Well at the moment, the policy is one of forging ahead, and that has led to a large number of unsuccessful trials and a lot of people having to undergo the awful experience of giving evidence with little chance of anything to show for it in terms of a conviction.

As I said, at the beginning of this piece – I really don’t know what the answer is, but what I do know is that it would be much better if society would trust the judgement of the lawyers involved and allow them to use their experience and instinct when it comes to charging sexual offences without any political or media intervention.

{ 2 comments… read them below or add one }

Mike Killingworth October 1, 2013 at 8:12 am

Ray – re your last paragraph: do you know of any country in the world which does this?

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Ray_North October 1, 2013 at 10:13 am

You’re right Mike – and, it is probably right that politicians and the media do scrutinise the criminal justice system – it can not and should not exist in its own vacuum – however, the current level of hysteria about certain types of cases means that the line between positive and negative influence may well have been crossed and that leaves us with a system where good lawyers are nervous about making what they know and feel to be proper sensible decisions.

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