Don't mention the war.
It has long been agreed that previous convictions and bad character evidence have no place in a fair trial.
Recent legislation has meant that a person's propensity to commit specific kinds of offences IS allowed to be heard in court. But it's rare that this is actually admitted in evidence by the judge and it's normally only used if the defendant tries to claim he or she has a good character. For example if the defendant says, "But I didn't realise people sold stolen DVD players, your honour!", and you can prove that he's been found guilty of possessing stolen DVD players before, you'll probably be allowed to use the evidence.
Here's a recent case where this has become an issue. A 15-year-old girl is raped. She doesn't tell anyone for ten years, and then suddenly reads in the papers that the man who raped her has been convicted of raping a six-year-old. She decides to come forwards.
The case has been thrown out because she can't explain why it took her ten years to report the rape without mentioning the case of the six-year-old. As soon as that is mentioned, any jury in the world would struggle not to find the guy guilty.
This is a good example of how we must protect defendants from overwhelming evidence of their guilt. Most police officers I know can give examples of how they have tried to introduce powerful evidence such as 999 tapes of people screaming and convincing CCTV, only to have it refused because it wouldn't give the poor suspect a chance.
One of the fundamentals of our adversarial system is making sure the barristers get to have a juicy debate in court. That won't happen if we produce too much evidence that the suspect is guilty, and it just wouldn't be fair on him.
Recent legislation has meant that a person's propensity to commit specific kinds of offences IS allowed to be heard in court. But it's rare that this is actually admitted in evidence by the judge and it's normally only used if the defendant tries to claim he or she has a good character. For example if the defendant says, "But I didn't realise people sold stolen DVD players, your honour!", and you can prove that he's been found guilty of possessing stolen DVD players before, you'll probably be allowed to use the evidence.
Here's a recent case where this has become an issue. A 15-year-old girl is raped. She doesn't tell anyone for ten years, and then suddenly reads in the papers that the man who raped her has been convicted of raping a six-year-old. She decides to come forwards.
The case has been thrown out because she can't explain why it took her ten years to report the rape without mentioning the case of the six-year-old. As soon as that is mentioned, any jury in the world would struggle not to find the guy guilty.
This is a good example of how we must protect defendants from overwhelming evidence of their guilt. Most police officers I know can give examples of how they have tried to introduce powerful evidence such as 999 tapes of people screaming and convincing CCTV, only to have it refused because it wouldn't give the poor suspect a chance.
One of the fundamentals of our adversarial system is making sure the barristers get to have a juicy debate in court. That won't happen if we produce too much evidence that the suspect is guilty, and it just wouldn't be fair on him.
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Copyright of PC Bloggs.
posted by PC Bloggs at 01:26
31 Comments:
A twenty five year old woman alleges that she was raped 10 years ago. This is not overwhelming evidence, it is an allegation. Could she be an attention seeker? It does happen. Munchhausen's syndrome is a recognised illness.
If there was no other allegation against this man, and a woman popped up to say that he had raped her 10 years ago, would you call that overwhelming evidence? Are you a fully paid up member of the 'All men are rapists club?'
You are correct in saying that if the case of the 6 year old was mentioned, then any jury in the world would struggle to find him not guilty. Even if he wasn't.
Of course, he is a scumbag, so what does it matter if he did it or not? If you can't see the answer to that, then you really are in the wrong job.
24 July, 2007 07:59
There is a down side to this, of course.
If you allow such material it will be deliberately collected. It is easier than collecting actual evidence. It will also lead to targeting the "usual suspects" simply *because* they can be easily smeared in court.
This sort of thing occurs now in historical abuse cases. The Police quite deliberately go for sheer quantity and ignore quality and accuracy and indeed blatant dishonesty and collusion amongst the complainants, along with behaviour such as introducing them to compensation solicitors. The trial then degenerates into a smear campaign and "justice" is served on a "no smoke without fire" system.
It happens because the Police are interested not in accuracy, but in convictions.
24 July, 2007 08:44
Hmmm. I sort of see your point, Steve.
However.
1. Sexual offenders, of the type who are prepared to enter a house and take a six year old girl from the bath, don't tend to stop offending until they are incarcerated, too old to move, or dead.
2. Thus, I'd personally be in favour of the wider introduction of similar fact evidence in rape cases, anyway.
3. Do you imagine that every 15 year old who is raped gets up and immediately rushes to the nearest police station to report it? Or is it possible that some are too frightened and traumatised to do so at the time?
4. Is it impossible that she didn't see her attacker from that day until she saw his photograph in the paper? And that then, as a mature woman, decided she'd have a go back?
5. Yes, she could be an attention seeker. She could also be a genuine rape victim. Why not let a jury decide?
6. Oh, I forgot. Because 'Any jury in the world would find it difficult to find him not guilty.' Hmmm. If the limit of her evidence was, 'He raped me 10 years ago', I suggest not. A judge would direct them to acquit and if he didn't the verdict would be overturned at the Court of Appeal.
If, however, the girl described when and where it happened, had intimate knowledge of the man's body, was a convincing witness and was able to explain why she didn't come forward earlier, maybe he'd be potted.
7. Ooops. But his previous conviction would have had to have been introduced, because he'd have tried to rely on his good character. And thus he'd not have had a fair trial. Well, call me old fashioned, but that's life. If you will insist on going round raping six year olds, I do feel you sort of forfeit the right to a good character reference in court.
8. I don't know of you're a new reader of this blog, but I wouldn't take the phrase 'overwhelming evidence' seriously. Bloggsy is very, very ironic.
9. Are you a member of the "all child rapists only committed one offence and should be protected by expensive lawyers and the state against (possible) previous victims club"? I'm sort of not.
I like to credit juries with a bit of common sense. I think - and they don't always get this right, of course (though in this guy's case the practical effects on him would be nil if they got it wrong) - that as long as the evidence is not distorted or faked, and the judge is fair, and the barristers are evenly matched, they tend to get it right. Even if they know the guy has done it before. I've appeared in cases where this has happened (or at least the defendant has been acquitted despite similar fact evidence being introduced).
The system has been skewed so far in favour of the defence we're in danger of losing sight of reality, here. And I mostly defend.
24 July, 2007 09:04
Anonymous 0844, the simple fact is 90% of ALL crime is committed by 10% of the population, so it actually is the usual suspects anyway. If someone has in excess of 200 convictions of theft offences and there is reasonable evidence to indicate that said person has committed a burglary, the CPS will only authorise a charge on that one offence anyway IF there is sufficient evidence, so why not show the jury they the suspect is a complete and utter slag when they get to court??
In response to Steve's comment, although I do not know the evidence in that specific case I have NEVER seen CPS authorise a charge on 'he said, she said' evidence, there has to be some kind of corroboration to it.
24 July, 2007 09:33
This is Anon0844 (who ought to get of his backside and get an identity :))
MetCountyMounty, I know that, and I know that you know probably who about 99% of that 10% are. I'd actually suggest that it's more like 98% of crime by 2% of the population :(
Past History is a perfectly reasonable approach for looking for suspects, but you cannot use the same argument to both select and evidence your suspect - it is a very basic statistical error, result picking.
Similar Fact should only be used when the methodology is very similar, not just "a burglary", for example.
For example, if a person has a history of raping someone tying them up with silk scarves, the use of a silk scarf in a rape is relevant. The simple fact that "he's a convicted rapist" shouldn't be allowed as evidence.
The former was established in "Brides in the Bath" - same modus operandi, so admissible.
The problem with using the latter, with just "a similar sort of crime" is it tempts people to go after the obvious suspects and smear them, and rely on the lack of intelligence of a jury.
I agree totally with your "and there is reasonable evidence" ; the problem is there are now arising numerous cases where this no other evidence besides "vaguely similar fact" - it is convicting people for burglaries simply because "lots of people have been burgled, so they probably did some of them"
It is the shifting of this from "very similar behaviour" to "same sort of thing" that has led to the trawling type injustices.
Regarding the CPS, they are not interested in the strength of the evidence, but only the likelihood of a conviction (and the public interest) - this takes into account the "no smoke without fire" thought patterns that people have. In certain areas (look for Pamela Mitchelhill for example) the desperate state of the evidence is ignored ; these are usually politically correct things ; children, minorities, racism etc.
(I am aware this is not the fault of the Police and justice would be best served in this country by executing all CPS employees on the spot)
Bloggs is normally an excellent writer, but she is naive regarding the "attention seeker" ; or more commonly the nutjobs who will, with a little prompting, make allegations against anyone. I suggest you have a look at Angela Stretton in the Western Isles to see how credibly evidence of one known nutter is taken with no supporting evidence. I've worked with such. It is no longer safe.
24 July, 2007 10:41
On the contrary Steve, when you wrote this;
"Of course, he is a scumbag, so what does it matter if he did it or not? If you can't see the answer to that, then you really are in the wrong job."
I think you have conflated police with judges. Certainly, i wish police to have a more flexible attitude while judges stick to the law. What's that quote about "sleeping well at night because rougher men (or women i spose) than us are prepared to fight"?
Ive just gone searching and found it here in a post about moral equivalency;
http://canadiancoalition.com/forum/messages/23068.shtml
"Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf."
So no, i don't want my police walking round like innocents reassuring themselves that 'we cant yet prove he did it so we musnt jump to conclusions just because he's got previous' I want them running around at night shouting 'Come ere, slag!' and figuring out the details later.
24 July, 2007 10:48
Mr Man at the Bar.
I'm glad you sort of see my points but lets address yours.
1. Correct
2. Me too, unless the facts were 'discovered' after the publicity in this case. Then I suggest we need to be very circumspect.
3. Of course not. What has this to do with the price of fish?
4. Yes indeed, it's possible. Is there verdict of 'possibly guilty?'
5. Let the jury decide when they are going to, by the definition of this thread, be totally swayed by what has to be uncertain evidence. That's why not.
6. I don't know the case details on this, but a description of where and when it happened will easily come from a Munchausen's complainant, as would being a convincing witness (they do often believe their fantasies) as is their explanation for lateness of complaint. Kowledge of the man's body, from a rape 10 years ago? Maybe, maybe not. And that is the only evidence that could possible carry any weight.
7. Exactly my point. Had she come forward before the 6 year old incident, then he would have been able to rely on good character.
8. Why not wait until bloggsy says if she was being ironic.
9. No. I sort of believe in fair play for all as being an essential part of a judicial system.
As you say, the practical effects upon the offender are about nil. Why then prosecute him for an offence in which there appears to be insufficient evidence?
Also, suppose evidence later comes to light that could well acquit this man of any offence? You could then have a situation where a man was convicted of rape (older girl) on the basis of his conviction of the rape of the 6 year old. When he appeals his conviction for raping the 6 year old, the conviction for raping the older girl is used to rebutt his appeal by destroying his character.
Some accused persons are actually found to be inocent you know. However dreadful the crime was.
24 July, 2007 10:48
Mr BNP member,
People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.
George Orwell
You might care to read his book '1984'. Or look around you.
24 July, 2007 10:54
Or to look at it another way, the police do far more worrying things than arresting a rapist because they think he has done it before, which need to be looked at before trying to restrain them from going after proper criminals.
24 July, 2007 10:55
I have! its one of my favourite books - my dad gave it to me. (Though ive just realised that i haven't put it on my favourite book list in my profile, a mistake ill amend right away)
24 July, 2007 10:57
Steve
I'll reply but then I'm out of here as too busy to take any further.
1. Thanks.
2. No-one saying we don't need to be careful. What you seem to be suggesting is some sort of get out of jail free card for people once they have been convicted... where no-one is allowed to say, "hey! he did that to me too!" when they read about it in the paper?
3. What it has to do with the price of fish is that you mention the 10 years ago line as though it were significant. It is in legal terms, in that it relates to the defence wishing to raise the question of why she didn't come forward before now. You go on to suggest the possibility that it might be because she has Munchausen's. Well, it might. But it might also be because she was traumatised and 15.
4. She's possibly lying, he's possibly innocent. We'll never actually know, but the best system the world has yet devised for finding out is to ask a jury to decide.
5. You say the jury 'will be totally swayed' 'by the definition of this thread'. Is that how we decide these sorts of matters? A few people on a blog thread discussing something? I repeat: juries are not always swayed by similar fact evidence.
What evidence do you have for your assertion that they will be "totally swayed"? The judge says so? The CPS? Are they always right?
6. So... do you throw out all cases of rape where the victim delays coming forward? Or do you call expert testimony as to the woman's state of mind and let the jury hear her side of the story against his? We don't know the facts.
What if she says the rape took place at Minehead Butlins and his credit card statement show he was there at the time? ie something she couldn't have dreamed up? We don't know the facts; they might be very interesting.
7. Excuse me for not weeping that child rapists can't rely on claiming good character. Goopd character evidence is supposed to be called by people of, er, good character.
8. Bloggsy?
9. So do I. In what way has this 15-year-old received fair play? In fact, how often do most victims receive 'fair play'?
The Defence team would defend this guy to the best of their ability, because they don't know if he is guilty or not. But I'd rather have a jury make that call, in possession of the facts (and it's a fact that he is not of good character) than turn it into an abstract argument between lawyers.
Why prosecute the offender? How about, to give the alleged victim some 'closure' as our American friends like to put it. Or don't victims count to you?
Re later evidence, in the child rape his dna convicted him. That will do for me.
Interestingly, Voisey had already been convicted for sexual assault on another young girl at a Leisure Centre in 2001. I wouldn't allow this in evidence, though it does suggest a pattern.
24 July, 2007 13:02
Totally OT, but this is a spoof music video portraying one section of the police's regular 'customers';
http://www.youtube.com/watch?v=stPqr6B_zEY
24 July, 2007 13:19
"... where no-one is allowed to say, "hey! he did that to me too!" when they read about it in the paper?"
There's actually a very simple solution to this - stop paying money to "victims". They can have counselling, support, training, and (maybe) see their persecutor go down.
But they *can't* have a fat wodge of cash to spend on themselves.
24 July, 2007 13:24
. . .And I think this is the chief protagonist of the video on an ecstasy pill (or pretending to be, im not sure)
http://www.youtube.com/watch?v=RsC4pzZCpcQ
24 July, 2007 13:37
In answer to the question levelled at me, I am not not being ironic, but I wouldn't say I was being ironic. Does that help?
24 July, 2007 15:34
I'd go along with the point that the CPS would laugh at a case if it was even considered on the merits of... "he did it again".
Who are we trying to kid? is anyone here in doubt of the level of evidence required for a charge, let alone the laughable excuses that are considered alibis at court despite the weight of evidence.
Get real!
24 July, 2007 19:42
tupc, it depends on the crime.
There are certain PC crimes that will be prosecuted almost irrespective of the weakness of the evidence and the pointlessness of the crime, and sometimes, yes, it's just people saying "he did it too".
Of course, they don't just say that, they go into great and gory/explicit detail, and it does swing the jury very well if the Police can get enough people to say "he did it too" - that's what trawling is.
25 July, 2007 08:39
bloogs, re irony:
so when you say "This is a good example of how we must protect defendants from overwhelming evidence of their guilt" there was no irony in that, and you actually do, seriously, think that this girl's allegation is 'overwhelming evidence'?
25 July, 2007 09:39
"This is a good example of how we must protect defendants from overwhelming evidence of their guilt"
There is NO irony in that?
Far be it for me to tell my readers how to take what I write. It's an interesting discussion though.
25 July, 2007 13:06
"Far be it for me to tell my readers how to take what I write. It's an interesting discussion though. "
There you go again! :-D
25 July, 2007 14:40
Maybe some people do jump on the band wagon for some attention in similar circumstances. But saying they all do is like saying “'All men are rapists”. An allegation is made, and evidence was gathered.
Sorry, she was entitled to her day in court. To have the evidence heard. Maybe she was afraid that nobody would believe her and did not report the rape. Now he has been convicted, maybe she felt that someone may believe her. Those facts will never be heard. I have no doubt that the Police and CPS would take the case forward just on her say so. Not without detailed corroborative evidence.
What about the victims right to a fair trial (as per HRA)? Or do such rights only apply to defendants? In my mind the HRA is the most abused piece of legislation ever. A “get out of jail free card”, (well, “let the tax payer pay for you to get out of jail for free card” anyway), if ever there was one.
Like others have said, those who go around abusing 6 year old girls kind of lose their right to being treated as being of good character.
I don’t know what evidence was gathered, but I’ll wager that the defence were concerned enough to try to get this discontinued before any of the evidence that was in serious danger of further convicting his client was heard.
Sadly, we will never know what the evidence was.
Lets hope he stays neatly incarcerated for many years to come- he clearly is a danger.
26 July, 2007 00:13
It's true that not all bandwaggoners are making it up. The problem is the Police make no effort to discover whether they are or not, and ignore, and indeed hide, a history of such behaviour, so it's impossible to tell - so they can have a smear campaign based on "similar fact" evidence.
"I have no doubt that the Police and CPS would take the case forward just on her say so. Not without detailed corroborative evidence."
Well, they will. I refer, again, to Angela Stretton - not the only one by any stretch. Google for how seriously they took *her* fairy tales.
"What about the victims right to a fair trial (as per HRA)? Or do such rights only apply to defendants?"
The victim isn't on trial.
26 July, 2007 20:45
If a case was decided purely on the facts then how does anyone get convicted of rape?
He had sex with me when I didn't consent.
Yes I had sex with her but she consented.
no witnesses, no other debatable points. How can anyone be sure beyond a reasonable doubt?
Unless its just deciding who has a more honest face?
26 July, 2007 21:02
Anon 20.45hrs, I disagree. The victim would have been on trail- not in the same way as the defendant, but her life, her previous history and even her mental health history would have very much been under scrutiny.
In fact I have no doubt that CPS* consideration will have touched upon her reliability and suitability as a witness.
I am fairly sure I am right in thinking that the HRA right to a fair trial has been used for other situations other than a court trial.
* I do not for one moment suggest that the CPS are always right, or anything like it. Just that they will have considered it.
26 July, 2007 22:00
Minty,the victim has a right to a fair hearing, but is not on trial. Fair hearing also includes balance.
The CPS and Police are interested in convictions, not justice. The aim is to "get a result". Minor details like (for example) the accuser having an extensive history of making things up (for example) will not stop the prosecution bandwagon. Ref: Stretton,again.
28 July, 2007 13:00
Anon- I did google Angela Stretton and from what i have read, I agree that there appear to have been terrible errors in that case. The situation was entirely different. Do we know if this victim has a history of making false allegations? Has she been charged with wasting police time?
Like you said, this victim was entitled to a balence hearing, something she has been denied.
ps- When you going to treat yourself to that Identity?
29 July, 2007 12:17
Minty, we have no idea whether or not she is.
The problem is the Police make no effort to find out whether she is or not ; they simply do not care as long as she provides "evidence".
...... okay, I'll get myself an identity ;-)
30 July, 2007 18:15
The only "ironic" thing about PC Bloggs, is than she doesn't understand the meaning of "irony"
Silly, half-educated bitch.
04 August, 2007 00:41
You are right, I SO don't understand the concept of irony. NOT!
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