Sunday, April 28, 2013

Autres Temps, Autres Mœurs

The series of arrests that began following the Jimmy Savile revelations continues apace, and some charges have now been laid, while some cases are not being proceeded with, the arrested people being released from what must have been an appallingly stressful period on bail.

I have no comment to make on any particular case, of course, but I do feel a niggling sense of unease at the sheer age of some of the allegations that are being made. Given the very high burden of proof in a criminal court, just how sure can a jury be about something that is alleged to have happened twenty, thirty, or even more years ago?

With the impending abolition of committal proceedings in the magistrates' court, our function will simply be to shunt the cases off upstairs to Hizonner.


  1. You can bet the victims will remember it very clearly. A friend of mine was abused for years from being a young boy. He is still affected by the experience now in his fifties.

    Let juries decide on the evidence.

  2. I would be more disappointed with the fact that the arrests seem to be taking the investigation away from the crucial question of how many complaints about JS were ignored, and how, and who else in positions of power / authority were involved in his activities, either actively or passively.

    Arresting people in the public eye from 30 years ago based on compliants, whilst important to those victims, is NOT linked to the questions raised by the core issues around JS.

  3. Since most of the so called offences took place such a long time ago,the chances of any real evidence surviving are slim. This surely means that any case will be "He said/she said". As the burden of proof is beyond reasonable doubt, I can see no realistic chance of anyone being convicted.

    1. I agree. It is unlikely that there will be any forensic evidence, witness memories dim with time and failing health. Worse, false memories surface which adds to the doubt of the value of old testimony.

  4. If there is no realistic chance of conviction they won't go to a jury will they?

    1. I am afraid that the CPS will proceed.

      They need to be seen to be successful in the majority of cases; imagine the headlines if on average they lost more than they won..."CPS WASTES PUBLIC MONEY ON SANDWICH THEFT"
      They apply a test of the probability of conviction, which (I believe) sets a 50% threshold.

      However, in sexual cases they set a lower threshold. They deem it in the public interest to proceeed and prefer to let a jury decide. Hence rape case convicions are around 7% - clearly for that offence the CPS decides to prosecute although they realise that there is little chance of a conviction.

  5. I have found much of these 'investigations' disturbing. While I have worked for many years with victims of sexual and physical abuse, I am also conscious of the risks of judging yesterday's behaviours by today's standards.

    As others have commented, the quality and reliability of evidence after all this time is questionable. But having recently seen a young man convicted at trial in a magistrates court on what could not possibly be described as any more than 'balance of probability', I am worried that some of these might be convicted to ensure 'political correctness' rather than abosolute justice.

    Ultimately, I would rather (with regret) see a guilty person freed than an innocent wrongly convicted.

    1. "But having recently seen a young man convicted at trial in a magistrates court on what could not possibly be described as any more than 'balance of probability'," - in your view. Clearly at least two of the three on the bench did not agree and saw the case as being proved beyond a reasonable doubt.

    2. Being a jack of at least a couple of trades, I represented an appellant in the immigration tribunal one day, then a defendant on a dwdc case in the mags the next.

      The standard of proof in the immigration tribunal (for asylum cases) is generally agreed to be pitched lower than balance of probabilities, whereas the one facing the CPS is beyond reasonable doubt. These are at opposite ends of the scale.

      It is entirely commonplace, and anyone practising in both jurisdictions will agree, that an appellant trying to claim asylum will put forward a perfectly plausible case with no serious inconsistencies that matches the objective evidence, but will be kicked out regardless. If any trivial inconsistencies can be found then credibility will be shoved out of the window wholesale, or if none of those then 'demeanour' will come into play (quite how you assess the demeanour of a 19 year old Afghan who is talking Pushtu and never went to school is beyond me).

      Meanwhile in the mags, as I had with my driving case, you have three officers coming out with substantial inconsistencies, disagreement between the officer's notebook and his statement, photos of vehicle damage corroborating the Defendant's story, a prosecutor mumbling to me whilst waiting for verdict that he's surprised they didn't kick it out at half time when invited, and a conviction nonetheless.

      Having the two cases one after the other threw the standard of proof into sharp relief for me. Forgive me for being cynical, but it is very much in the eye of the beholder. In all but the cases that obviously must, and I mean MUST, swing a particular way, decision makers act in accordance with their their own view of the world, their sensibilities, prejudices, soft spots, then simple rationalise their decisions in accordance with the standard of proof that happens to be floating around. So don't feel too proud of your fact finding role, the chance is that the losing lawyer is rolling his eyes once he's out of the room and reflecting that if he'd had the bench / judge one courtroom along he'd have had the opposite result.

      Oh, and just to sound even more jaded, and to get something off my chest, in cases where police evidence was challenged "was he using his mobile phone?" "did he cross over the line at the traffic lights?" "did he actually start swearing at the copper, or was it the other way round?", just about any defence lawyer will choose a DJ(MC) over magistrates any day, because they've actually got the balls to disbelieve the police, or at least be kind and say 'the officer's doing his best but ultimately I'm not persuaded to the necessary standard'. The anxiety on most lay magistrates' faces when asked to acquit someone in the face of police evidence (or opinion) that they're guilty is palpable. My personal favourites are:

      - the officer that saw someone use his phone with his right arm, driving three hundred yards away through driving rain and another lane of moving traffic, who it transpired did not even have the use of his right arm and was driving a disabled car: convicted, then on appeal to the Crown the circuit judge threw it out saying he didn't understand how it was seen to ever have had RPOC

      - the officer who I cross-examined thus:
      - Do you actually remember seeing a phone in his hand, or just a shape?
      - A dark shape
      - He told you when you pulled him over he was eating a magnum, could it have been a magnum?
      - I couldn't see it properly, so it could have been a magnum. He showed me the stick.
      - So you can't be sure he was using a mobile phone at all?
      - Yes I can.
      - How come?
      - I just am.


      ps I appreciate that I'm ranting on here that you're all pro-police, and the police are all on here ranting that you're anti-police

  6. So why are the CPS pushing the prosecutions if there is no reasonable chance of a conviction? Are they just looking to cove their backs.

  7. I can't see these cases coming to court, given the difficulties posed by the lapse of strikes me as a sop to cover the lack of any proper, public investigation as to how Savile gained privileged access to prisons, etc..

  8. Some may even go to a Heronner or two!
    Kate Caveat

  9. Playing Devils advocate,

    If I were to put myself in the shoes of one of the accused (other than Jimmy Savile), and was asked what was I doing on such and such a day, I wouldn’t have a clue. If I was then asked if I had met a young girl (I assume they are girls?) between a period, I would struggle to remember, especially if it was ten or twenty years ago.

    I keep no records of what I was doing all that time ago, I don’t even think I’ve got bank records going back that far. The bank records would at least give me an idea of where I was and what I was spending, but this is too long ago.

    How on earth could I defend myself against something so long ago? As someone has said it will be a “Yes you did!”, “No, I didn’t!” case.

    This man above was a highly respected individual and was my doctor for over 20 years. The offences involve 7 women and the earliest offence was in 1970 and the last in 1995. Clearly the evidence of the witnesses was good enough to convict him and the passage of time did not save him from a lengthy jail sentence added to which he has to pay his victims a total of £38000 compensation

  11. Frankly I sincerely doubt whether any of the defendants will actually get a fair trial. This all has the stench of the Salem Witch Trials about it. I expect that in virtually every case that goes past half time the juries will convict.

  12. Instead of getting all het up and spewing out righteous indignation from every orifice, why don't we just wait and see what actually happens?

    1. As ever, Ian is very wise. Obiter J's analysis too is also well worth reading, likewise as one has come to expect.

  13. Readers may be interested to look at my blogpost on Prosecuting Historic Child Abuse.

    It's also worth noting that, in the past, some cases were not prosecuted due to lack of 'corroboration'. The law relating to that has been amended.

  14. Maybe there will not be many or any trials. Maybe they will all do a Stuart Hall and admit they are guilty.

  15. The Stuart Hall conviction answers the anxieties expressed in the blog and in many of the above comments. By no means all victims of child abuse have their lives blasted by the experience - some of us go on to live normally happy lives. But for many the harm done by these monsters is gross and lifelong, and that surely is the justification for the efforts to bring to account those who exploited their talent and popularity in this way.


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