How criminal imbalance results from a biased view

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The UK’s director of public prosecutions is the guardian of public justice. When the guardian of justice bends the process of criminal prosecution to his or her own agenda, misprision of justice is bound to result.

“Misprision” is the deliberate violation or neglect of duty by someone in public office. Alison Saunders, who is stepping down as the UK’s director of public prosecutions, is guilty of having done just that.

History has taught us to beware of the zealot.

On taking office in July 2013, Saunders declared that she thought women as witnesses and victims had had a raw deal. Her solution was to reverse the burden of proof upon the prosecution, by directing the police to “automatically believe the victim.” Note the designation “victim” instead of the correct term “complainant.”

Even if there was more than a grain of truth in her opinion, reversing the burden of proof undermined a cardinal tenet of the British criminal justice system.

Any man properly convicted of sexual assault or rape after due process deserves a sentence that will mark him out for life as someone permanently degraded, just as his action attempts to and all too often does destroy the sense of self-worth of his victim.

I state “properly convicted after due process” because despite the bestial nature of the crime, perhaps even because of its emotively evil quality, it is vitally important that guilt be proved beyond reasonable doubt just as in any other grave offense. Emotions can so easily displace reason.

Despite the bestial nature of the crime of rape, perhaps even because of its emotively evil quality, it is vitally important that guilt be proved beyond reasonable doubt just as in any other grave offense. Emotions can so easily displace reason

Not according to Ms Saunders.

Upon taking up her office, she instituted a policy under which the London Metropolitan Police were directed to “automatically believe the victim.”

To all intents and purposes, those against whom an allegation of rape was leveled were deemed guilty until they proved their innocence, a reversal of the burden of proof that guards against injustice.

The police, under the overall supervision of the Crown Prosecution Service (CPS) – of which Saunders was the head – have the responsibility to investigate each and every allegation of a criminal offense. Only where sufficient cogent evidence exists to substantiate such an allegation should anyone be charged with an offense.

But if the investigation begins by blind acceptance of a complainant’s word, the burden of disproving it shifts to the person accused.

A number of high-profile trials in the UK had to be abandoned part way through when it was discovered that the CPS had withheld material evidence that contradicted the prosecution’s case or supported the defense.

Let us be clear about this: Material evidence was concealed from the defense. In my book that ranks as perverting the course of justice, which in Britain is an indictable offense that carries a maximum sentence of life imprisonment.

In how many other such trials was evidence successfully concealed? How many false convictions and imprisonments?

Legal history is replete with instances of women who, thinking better of their behavior the night before and in an attempt to shift responsibility, cried rape in the morning and let loose the dogs of criminal investigation.

On the other side of the coin, countless women felt so humiliated by the trauma that they preferred to stay silent rather than subject themselves to the disorienting and psychologically wounding experience of bringing their attacker to book.

I well recall a dreadful time when judges at the Central Criminal Court in London would openly say to a jury, “You may well think that the way the complainant dressed or made herself up was an open invitation to sex.”

Similarly, there were police officers who questioned complainants, their voices full of manifest disbelief, assuming that because a girl was out late at night she was inviting unwanted attention.

Over the years, British police improved the manner in which they handled allegations of rape, providing sympathetic support during the evidence-gathering process, always aiming to protect the dignity of the complainant. It was not always so.

Such attitudes seriously needed to be remedied and much had been achieved, particularly by Saunders’ predecessor Keir Starmer QC, but not by going full circle in the opposite direction and assuming that everyone accused was automatically guilty.

Building a credible case of rape demands careful testing of the alleged victim’s evidence, mindful of the cross-examination that defense counsel would conduct. Playing the role of devil’s advocate is essential if wholly unprepared and untested complainants are not merely to be thrown to the wolves in wigs.

At the heart of many such allegations, the gap between consensual and non-consensual sex can be minuscule, despite that gap making all the difference in the world.

Even a husband can be guilty of raping his wife.

In this emotional miasma, consent can become something elusive to pin down.

There is a broad spectrum of conduct that falls within the classification of unlawful sexual intercourse.

Defense lawyers who fail to behave with proper respect for the complainant incur the indignant wrath of a jury and are far more likely to turn it against their client. Every witness must be treated with courtesy

At the top is the use or threat of violence, with or without a weapon. These one can categorize as the black-and-white cases, often depending upon establishing the identity of the assailant not inquiring into consent.

At the other end of the spectrum is where intimacy progresses to a critical stage but consent is withheld at the very last. It is in this latter category that the area for misunderstanding and miscommunication can arise.

I must declare an interest here because I have conducted the defenses of men accused of rape.

I spoke disparagingly of “the wolves in wigs,” but defense lawyers in such trials who fail to behave with proper respect for the complainant incur the indignant wrath of a jury and are far more likely to turn it against their client. Every witness must be treated with courtesy.

But I digress.

Imagine if everyone who made a complaint to the police had his or her words accepted without question, without investigation into the practicability or credibility of an accusation, compelling the accused to disprove whatever was said about them. That is the nightmare world of dictatorships and extremist autocracies.

Yet in relation to allegations of rape, that was the world according to the lights of Alison Saunders.

Those in high office like Ms Saunders whose zeal overrides judgment find that their mindset poisons every level of their organization.

The contagion of prejudice in its proper sense of pre-judging an issue had seeped into the very warp and weft of the British CPS.

Just how deeply ingrained this had become is evidenced by the fact that the commissioner of the Metropolitan Police found it necessary to tell her officers that they “must have an open mind when an allegation is made and that their role is to investigate, not blindly believe.”

I find it extraordinary that in 2018 it was necessary to give such a direction.

The office of director of prosecutions, aside from legal qualifications and experience demands someone with an innate objective sense of justice. Almost by definition, these qualities are more likely to be found in a practitioner in the private sector than by promoting a career CPS prosecutor as was the case with Saunders.

Hong Kong should bear this in mind.

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