Mowbray’s Crime Team

Welcome to the blog of the Mowbray’s Crime Team.  Based in Bath, Somerset, we are a team of experienced and committed defence lawyers, who care about justice, care about our clients and are used to winning.  This blog gives us a chance to share some thoughts on topics related to the Criminal Justice System.  Want to know more?  See http://www.mowbraywoodwards.co.uk or mail mag@mowbraywoodwards.co.uk

Matthew Graham, Partner and Head of the Crime Team at Mowbrays

Consent in Gender Identity Fraud Sex Cases

The recent case of Gayle Newland has thrown the topic of gender identity fraud back into the limelight, and is the latest in a series of cases in which a person has been criminalised and sent to prison as a sex offender for deceiving a sexual partner over their gender.  The facts are unusual; Gayle Newland posed as male, Kye Fortune, in a long term relationship with a female, in which they met over a 100 times and had a sexual encounter around 10 times.  The complainant had been persuaded always to wear a blindfold.  All was happy until the complainant in one encounter tore off her blindfold and discovered that Kye Fortune was really Gayle Newland.  It was a complex, lengthy and sustained deception, and the court found that the complainant had not consented to the sexual activity because although a fully willing participant, her consent and been vitiated by the deception.  He was a she.

 

In law, a person consents to sexual activity if he or she agrees by choice, and has the freedom and capacity to make that choice.[1]  There are other legal presumptions that set out circumstances where there will not or may not be consent, such as where the victim is asleep, subjected to violence or unlawfully detained.  Consent will also be vitiated when there is a fraud as to the nature or purpose of the relevant act, although this has generally been held to relate to matters such as fake medical procedures rather than gender identity fraud.

 

The legal focus therefore relates to choice and the quality of that choice; that consent must be given by free choice.  Matters which vitiate that free choice will thus vitiate consent, and choice based on a deception is not a free choice.[2]  Put simply, the female chose to have sex with a male called Kye, not a girl called Gayle.

 

This is said to be the “common sense” position.[3]  It was also said that some deceptions (such as in relation to wealth) will “obviously” not be sufficient to vitiate consent.[4]  The variety and types of deception in advance of sexual relations will be endless, and it is said that the law can negotiate such issues by “broad common sense”.[5]  However, it might be thought far from clear why these distinctions are either common sense or obvious.  Indeed, as soon as the law relies on so called ‘common sense’, problems surely lie in wait.

 

Difficult examples are easy to imagine.  Would a lie about religious belief vitiate consent, if a religious fundamentalist said they would never have sex with a Christian?  What about a lie relating to fidelity, if a partner would only have sex in a monogamous relationship?  Deception as to sexual history throws up a myriad of concerns.  Is consent vitiated by a lie about virginity?  Or a previous homosexual relationship?  Or a previous conviction for sexual offending?  Is the consummation of a bigamous marriage a sexual offence if one party is unknowing?  What about deceit as to future prospects?  The line between silent non-disclosure and deception is often desperately thin.

 

Is the answer to any of this obvious or common sense?  If any of these examples do not vitiate consent, then why not?  Indeed, is a person engaging in sexual activity with another free to choose to refuse to be defined by or discriminated against because of their gender, or how another perceives their gender, even if so doing involves what that other perceives as a deception?

 

Yet the courts have found as recently as 2013 that the sexual act is, “on any commonsense view”, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male.  There is a danger that this alleged common sense sounds somewhat heteronormative, and one might wonder whether, for example, the young trans-community who have been disproportionately affected by recent prosecutions would much agree.

 

The criminalisation of acts that are otherwise consensual because of a deceit by one of the actors is complicated and troubling.  The freedom of informed choice may indeed go to the heart of a respectful, responsible sexual encounter (even if both adults freely chose to do something that is neither respectful nor responsible).  But, as one commentator recently wondered, “is it right to disown our desires because we are retrospectively disappointed?”[6]

 

On analysis, it might be thought that the common law has come very close to creating a new offence of having sexual activity by deception.[7]  In this context, we can see that the only such actionable deceptions are those that ‘common sense’ tells us should be.  This hardly has the quality of certainty usually requisite in our criminal law, even if it has the advantage of flexibility, as we grapple with establishing any sort of broad consensus on where the criminal lines should be drawn.

 

Certainly, the apparent willingness of the state to prosecute young LGBTQ people for gender identity fraud highlights an uncomfortable truth.  Whilst we live in a world which broadly tolerates minor deception for sex, untruths about gender, whatever that may mean, will be a step too far.  A person’s gender has apparently such a special quality that a deception, even unnoticed during the most intense physical intimacy, turns a private act of loving embrace into a profoundly serious crime, deserving of imprisonment and public shame.  The effect on a complainant may be profound and long lasting, but to continue to expand and rely on the concept of the post-coital vitiation of consent in rape and sexual assault charges risks inconsistency, uncertainty and injustice.

 

Matthew Graham

Partner and Head of The Crime Team at Mowbrays

@thebathlawyer

http://www.mowbraywoodwards.co.uk

 

 

[1] S.74 of the Sexual Offences Act 2003

[2] Such was the decided position in R v McNally [2013] EWCA Crim 1051

[3] McNally at para.26

[4] McNally at para.25

[5] McNally at para.25

[6] Alex Sharp, Barrister and Professor of Law, Keele University at https://theconversation.com/gayle-newland-and-the-problem-of-equating-ignorance-with-non-consent-80407

[7] For further discussion see Assange v Swedish Judicial Authority [2011] EWHC 2849 (Admin), p79-91 regarding the failure to use a condom and the apparent difference between silence and deception.  See also R v EB [2006] EWCA Crim 2945 in which LJ Latham (Vice President), at p20, opines that a tailor made charge of deception in relation to particular sexual activity, rather than using an offence of rape, should be a matter of proper public debate.

Controlling and Coercive Behaviour 

Life looked a bit like the chocolate box house they shared together in a pretty countryside village. 20 years of marriage. Well paid professional jobs. International travel. Private school for the kids. Ivy on the stone walls, roses tended by the gardener. A new convertible sports car. Sure there were pressures. Long hours, long commutes. The ‘work life balance’ that plagues the middle classes. Still, socialite smiles all round. 

But for Stephen, time was running out on his marriage. He didn’t know it yet, but in just a few months time he would find himself off work, without a home, facing a Crown Court Judge and personal, financial and emotional ruination, all whilst wandering along a path having to ignore his own children.

There had been another row at home. It seemed to be always so these days. Angry, viscous words, of the sort that can only ever come from a former lover. What was it about? What was it ever about? You do not have to say anything but it may harm your defence if you fail to mention when questioned something that you later rely on in court. Anything you do say may be given in evidence.

Stephen had never been in a police cell. For hours. And hours. He wasn’t that sort of person. And what did Controlling and Coercive Behaviour have to do with anything? It must be a mistake, a nightmare for sure, but really? Let’s get it all cleared up and get home. To a nice long bath perhaps. He had never had a police interview. Or bail conditions. So he wasn’t expecting the character assassination from his wife. Yes they were having a rocky patch. She had mentioned divorce. But they were mature, sensible adults. They could work it out. They still had their children to parent. Think of the kids. He wasn’t expecting that withering, cynical, determined stare from the investigating police officer across the table. Or the worldly, apathetic shrug of the desk sergeant. They all say that.

You must not contact directly or indirectly your soon to be ex wife or your beloved children (who really should be kept out of this, but heh, tough). You must not go to your home where all your stuff, your whole life, is currently residing. Why? Because your soon to be ex-wife has alleged that you have been controlling and coercive. What do you mean it’s just her word against yours? You can tell that to a jury. We believe the victim. How do you plead? Remember, you get credit for pleading guilty. How do you plead? The prosecution will ask for massive costs if you lose after a trial. How do you plead? You won’t get your own legal costs back even if you win. How do you plead? Do you understand the strength of the case against you? How do you plead? It will go on for months and months and you will still have bail conditions throughout. How do you plead? Not guilty. I. Am. Not. Guilty.

Stephen wasn’t sure how to feel when he found out she had been having an affair for the last 6 months. He had his suspicions of course. It kind of explained everything. The long absences with ‘work’. The distance. The confrontation. The divorce request. And he had been foolish to try and go through her phone. He had been angry and hurt. Sure he did most of the banking, he always had done, that just the way they did things. And no he didn’t get on with some of her family. He wished he had spent less time working too. They earned well, but they still had to pay the mortgage and school fees, they still had to budget. He regretted those angry words. Ah, so you admit it then? 

Stephen’s case was an example (a real example, with details altered to protect those involved) of the relatively new offence of Controlling and Coercive Behaviour. It was created in 2015 to tackle aspects of domestic violence that had otherwise been beyond the scope of the criminal law. The offence has been little used by police or the CPS, after the political fanfare surrounding it coming into force. Detailed statistics haven’t been made public, but there have been only a handful of prosecutions. Most criminal defence solicitors will never have dealt with such a charge.

Domestic violence is abhorrent in all its forms. Perpetrators maybe male or female, although the vast majority of criminal defendants are male. It is absolutely right that domestic abuse is rooted out and brought into the glare of the courtroom. No person need be battered and bruised (or worse) before the criminal law will intervene. Abusive control is at the heart of domestic violence, a profound breach of the trust implicit in any relationship to be respected and safe.

It is clear that the new offence was designed to fill a loophole where such abuse and control fell short of a criminal assault and could not sensibly be shoehorned into a charge of harassment. It was a charge to get inside that chocolate box house, behind the facade of lifestyle or character or class or culture, to save a victim whose very will had been overborne by their abusive partner. It was seen as an offence to uphold traditional British values. It also just happens to mean that almost every divorcing spouse could find themselves in a police cell if their former partner wants to put the boot in. And from there, it is a desperately short step to the courtroom nightmare that Stephen endured. The publicity. No smoke without fire.

Much of this new law was plainly designed to criminalise the abusive man who dominates and abuses his partner. She cannot leave the house. She isn’t allowed friends. He belittles her in public. She is not allowed to spend money as she chooses. She must ask permission for everything. There might be violence, or threats of violence. Threats to reveal private photos perhaps. Defining domestic abuse is hard, it’s forms multi-faceted, hidden, humiliating. In many ways our law makers should be applauded for a law that catches those pernicious abusers who revel in controlling and abusing another human, for nothing more than their own selfish gratification, their own inadequacy.

Yet the most loving and respectful relationships necessarily involve ceding full control of one’s life to the will and desire of another. That is the sacrifice essential in a healthy relationship, marriage or otherwise. Practicalities, if nothing else, will see a sharing of responsibility at the very least. But when things turn sour, those relationships inevitably get redefined. What was one parent working and another at home with the children becomes not being allowed to carry on with the career. If one did all the banking and bills, the other, in anger, was never allowed control of the finances. And so it goes on. You never let me see my family. No, you never welcomed me in, always excluded me. You insisted I did all the housework. I had to work all the hours under the sun. That often visceral, unanswerable and ultimately miserable enmity so known to divorce and family lawyers now has a criminal label.

The apparent answer to these anxieties are the guidelines (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/Controlling_or_coercive_behaviour_-_statutory_guidance.pdf) given to police and prosecutors about how to use this new law. It is a rare thing in our system to have statutory guidelines which must be considered by an investigator, but this is how such a broad law is meant to be tempered to something we might all agree should be criminal, but find it very difficult to define. Unsurprisingly, at this point it is very easy to see how very wrong things can get very quickly. Police officers are under-resourced and over-worked. They encounter the very worst in society all the time. They are rightly zealously committed to get the bad guys. They are told to believe their victims. The statutory guidelines to the investigation of Controlling and Coercive Behaviour read as eminently sensible. As long as you are happy to let that officer be judge and jury, and ignore the history of such discretion. Most suspects or defendants will feel that they need to prove their innocence, and in reality most of them are right, even if a textbook might say otherwise. Waiting to be innocent unless proven guilty doesn’t mean much when you’re on bail, suspended from work, or not seeing your kids.

There are obvious parallels with the Protection of Harassment Act of 1997. That law was brought in to deal with Stalking, a serious offence by which offenders could escape justice as long as they didn’t actually assault the victim. Commentators at the time worried about how broad the new law seemed to be, but the sensible discretion of the police and prosecutors was always the answer. Roll forward to 2015 and we find that the Protection of Harassment Act has become the most common way of prosecuting relationship breakdown, a commonplace offence in every magistrates court in a way never intended that almost never has anything to do with stalking. Instead we have a new offence of Stalking (and more on that another time …)

For Stephen, this recipe for disaster landed on his doorstep. An acrimonious ex-partner, who had intelligently researched the new law of Controlling and Coercive Behaviour, an officer quite content to use the fullest force of the criminal law to support her victim, and a CPS who can hardly refuse to prosecute an allegation of domestic violence (to conclude that there was not a realistic prospect of conviction is to conclude that their victim might not be believed, which would be their fault, which might result in a complaint against them personally under the Victim’s Charter). Allegations of domestic violence are routinely prosecuted where there is no realistic prospect of conviction. To say otherwise would belie the reality seen in courts up and down the country every day. For many closely involved it is price worth paying to get at least a few more of the bastards who do it. Bad luck if you’re caught up in all of that.

Most of us think that the police will root out those cases that are only about a relationship breakdown, not criminally abusive control. That’s what Stephen thought. Most think that a fair investigation will hear both sides equally. That’s what Stephen thought. Most think that the truth will out in the end. That’s what Stephen thought.

In the end we went back to the beginning. What about that convertible sports car he had bought? What had happened to that? We read about it in her sworn statement, so it must be true. What a thing to spend the family money on, all for his mid-life crises indulgence. What do you mean it was a £50 model car, for the kids. Surely the police must have been able to spot that straight away? Shouldn’t that have undermined everything? A short non-conviction restraining order later (after electing for a Crown Court trial) and the nightmare was receding, leaving only the fact that Stephen hadn’t seen his children for 9 months and still had an acrimonious divorce to resolve.

Coercive and Controlling Behaviour in a relationship can take many forms. Defining domestic abuse is hard. Cases like Stephen’s ultimately undermine the force of the law, a sledgehammer to crack an already broken relationship, leaving both parties and the children the poorer and more miserable for it. It’s not a price worth paying. The statutory guidance should be reviewed urgently, to ensure that the new offence is used when the abusive behaviour of a partner is properly criminal. If there is doubt, the resources spent prosecuting an alleged offender will be better spent on supporting an alleged victim, through counselling, good social care, relocation support where appropriate and, perhaps more important than all, restoring access to the Family Court.
Matthew Graham is a partner and Head of Crime at Mowbray’s

Ched Evans – Did the Court get it Wrong?

Ched Evans – Did the Court get it Wrong?Similar Sexual Behaviour and Consent

 

The Ched Evans rape case has attracted widespread publicity recently. The star footballer, convicted of rape in 2012 who served 2 ½ years in prison was cleared on a retrial after the new jury were told that the young female he had sex with had a habit of drunkenly engaging in sexual relationships at that time, and that her behaviour with those other men sounded a lot like what Mr Evans had always told the police was the truth.

 

This controversial new evidence has been met with dismay and outrage in many quarters. A group of MP’s has called for an urgent change in the law. There has been much nonsense spouted, much misinformed opinion aired. Those clamouring MP’s might do well to read and understand the law before trying to change it. No new precedents have been set, the law has not been set back 30 years, the law has been followed. Due process has taken it course.

 

But the Ched Evans decision in the Court of Appeal was, with the greatest respect to all those involved, wrong.

 

Two men had come forward at different points in the investigation to claim they had also has sex with the lady in question, known as X, at about the same time as Ched Evans. The other sexual behaviour reported by these men, Mr Hughes and Mr Owen, was found by the Court of Appeal to be sufficiently similar to her alleged behaviour in the Ched Evans incident to be relevant and admissible.

 

On each occasion, if the evidence were true, she had been drinking, she is said to have instigated certain sexual activity, directed her sexual partner in positions, and used specific words of encouragement. 

 

With Mr Owen and Mr Hughes the behaviour was nothing other than consensual. The behaviour described by Ched Evans was found to be so similar as to be beyond a coincidence.

 

The criticism in this analysis by the Court of Appeal is twofold. Firstly, whilst it is obviously right that if the jury rejected his factual account of what happened he would have been guilty, the exact facts of what happened in the bedroom were not a central issue in dispute. X remembered nothing. She did not claim to have been raped. The Prosecution could scrutinise but hardly gainsay the factual account given by the defence. Moreover, even if the essence of what the defendant said happened factually was true, he did not necessarily stand to be acquitted. Rather, the key issue related to X’s capacity to consent, given her intoxication and all the other circumstances. Secondly, when considering whether X’s other sexual behaviour was “so similar” to that with Ched Evans, the court seems to have fixated on the words and positions of the participants, whilst singularly failing to acknowledge the real circumstances. What amounts to ‘sexual behaviour’ should be seen in context. With Mr Hughes and Mr Owen, X had chosen a sexual partner before undressing. She was with only one partner. Neither Mr Owen nor Mr Hughes had burst in uninvited on a sexually prone Ms X with their mates filming at the window. To describe X’s ‘sexual behaviour’ as similar or even sensibly comparable in these instances was unreal. It is disappointing that the Court of Appeal did not even appear to address the relevance of that gaping dichotomy in circumstances, despite a careful recitation of the facts.

 

So the Court of Appeal decided it would be unfair to deny the defendant the chance to prove his specific account of the sexual behaviour of X with him by calling evidence she had behaved in a physically similar way with others, such that this could not be coincidence. That pure legal point is one an academic might appreciate and in which there is force. It was said to be at the heart of a fair trial.

 

But that decision had the unfair effect or the risk of an illogical conflation that consequently X must have been having consensual sex with the defendant. As the court said, how she behaved sexually went to the issue of capacity to consent and actual consent, and probably his reasonable belief or otherwise in her consent. Indeed, but previous physically similar sexual behaviour that was consensual in wholly different circumstances absolutely should not have been admitted given the risk that it would be treated as evidence that the incident with Ched Evans was consensual. It was simply unrealistic to expect a jury to steer clear of this credibility trap, trial judge directions or not. This, fundamentally, is why the Court was wrong to admit the evidence. The real issue for a fair trial was whether X had the capacity to consent to sex with Ched Evans, given that she was intoxicated, lying prone in bed in the midst of sexual activity with a male she had chosen to be with, but that Ched Evans was uninvited and unknown, with his mates filming at the window. Did she consent to that? Did she have the capacity to consent in those circumstances? Did he reasonably believe she was consenting, in those circumstances? Did she make a real choice, in those circumstances?

 

Whilst the retrial was a different court, with a different jury at a different time, one might observe that when a court heard a trial about those real issues, Ched Evans was convicted by a jury fair minded enough to acquit his co-defendant. On the other hand, when a jury heard that X liked to have brief sexual encounters with other men, he was acquitted in short order.

 

There has been a lot of poor quality and at times hysterical reporting on the Ched Evan’s case. The effect may be to deter victims from reporting crimes. Ill-informed politians calling for kneejerk change make this worse, not better. The Court of Appeal was right to highlight that evidence about the sexual behaviour of a complainant or victim will be rare, especially when it relates to sexual behaviour with third parties. This was a rare, but perhaps wrongly decided, case.

 

Matthew Graham

Partner and Head of Crime

Transgender Prisoners

Men and Women don’t usually share a prison.  But recent transgender prisoner cases have thrust the question of which prison to use into the spotlight. Tara Hudson was recently released after serving the first part of her sentence in a male prison before a massive media campaign saw her moved to a female jail.  There’s more about her case elsewhere on this blog.  The Inquest into the tragic case of Vicky Thompson, who died in a male prison recently, has also recently been opened.  Women sharing a men’s prison.

 

The Ministry of Justice has announced that they are reviewing their own policy.  Given that their own policy expired in March this year before these cases came to the public eye, Tara Hudson and the family of Vicky Thompson may feel that the review comes rather too late.  It is nonetheless to be welcomed.  The outdated guidance put legal status at the heart of the process, whilst recognising a discretion should be applied in appropriate cases.  That it took a massive media campaign for Tara Hudson to get the case conference her case so obviously needed shows immediately the problem with such a system.  We should have little doubt that but for the media interest she would have served the 6 weeks ordered and been released before that review actually took place.  Tens of thousands of prisoners are simply put into prison and left before any meaningful review of their circumstances, such as their mental health, is undertaken.  The key to the whole thing is to make the right assessment at the beginning, either prior to or as part of the induction process.

 

The so called ‘Legal Status’ of a transgender prisoner is a pretty offensive concept, particularly when coupled with the Gender Recognition Certificate.  That transgender prisoners should be effectively required to prove their gender in this way only reflects the widespread bigotry that many trans men and women experience in society all the time.  It is to be hoped that any new policy puts respect for the welfare of the prisoner at the heart of the matter, not whether they have a particular piece of paper.  Once you get past the ignorance and discrimination, the issue is no-where near as complicated as might first appear.  The choice of prison is by no means the end of the matter – conditions and facilities for trans-prisoners fall some way short of even the previous guidance.

 

It was suggested to me recently when I appeared on Radio 5 Live to discuss the issues that the tough justice, prison works approach makes a call for reform over-stated, that soft liberals bemoaning the lack of Human Rights for the offender miss the point – don’t commit the crime if you cant do the time.  Tara Hudson has said she is committed avoid re-offending in part because of her awful experiences in the prison system.  So maybe it works?  But we can be clear – these ends in no way justify the means.  Legally, morally and in simple common sense terms, sending a woman to a male prison is profoundly wrong.  I don’t suppose we would advocate allowing racist abuse of prisoners in the hope that making the prison experience that bit more miserable would deter re-offending.  That sort of prejudice is wrong across our society, not least in prison.

 

When our Courts decide that a person has committed an offence so serious that only prison can be justified, we should all have confidence that the justice meted out is robust, but also proportionate and fair.  The punishment comes in the loss of liberty, not in the state being allowed to degrade and humiliate a person, nor in exposing the offender to bigotry and prejudice.  The failure of our prison system to achieve those fundamental aims must exacerbate and reinforce inequality in society at large.

 

I hope that the review on the policy of treatment of transgender prisoners is bold enough to ensure that these troubling cases are avoided in the future.

 

Matthew Graham

 

#iseetara – The Tara Hudson Case

Tara Hudson is a woman.  She was sentenced to 12 weeks in Jail for head butting a member of staff in a Bath pub on Boxing Day 2014.  She was taken to an all male prison at HMP Bristol to serve her sentence.  Following an unsuccessful appeal against her prison sentence, a social media campaign and over 140,000 signatures on an e-petition, the intervention of her MP and and wave of press attention she was transferred to an all women prison at HMP Eastwood Park to complete her sentence.  What? On? Earth?

Tara Husdon was registered at her birth as a male.  But she lives her life as a woman.  She has suffered more than her fair share of ignorance and prejudice.  That ignorance and prejudice became state sponsored when she was taken off to jail after Bath Magistrates concluded that her offence was so serious that only a prison sentence could be justified, and that an immediate custodial term was necessary.  The Crown Court agreed, despite the probation and psychiatric reports in the case.  A drunken offence, the high harm, the head butt, her record.  Off to prison, do not pass go.

The Prison Service has a policy about dealing with transgender cases.  What is shocking about Tara’s case is that it took so long for that policy to be properly considered and sensibly applied.  The assessment of the needs and circumstances of any prisoner should absolutely be understood before locking them up in a cell, wherever reasonably possible.  It is inexcusable and a desperate indictment of the current criminal justice system that we lock up people first and then think about them second (and only then if their MP or the twitter sphere kicks into action).  Tara had been on bail throughout her proceedings.  She was on bail pending sentence after pleading guilty.  The prospect of a prison sentence was known to the authorities before she was given one.  Even when she was sent down, it is truely astonishing and profoundly wrong that she should have been sent to a male prison.  The absence of a proper procedure for assessment of incoming inmates brings shame on our system, and affects thousands daily to the detriment of us all.  The mentally ill, children, first time prisoners, for example, are all locked up inappropriately because we cannot find a way to decide how they should be incarcerated.  It is easy to think that this is about resources – austerity and all that.  But such a simple and easy answer hides a darker truth.  Thinking about the people we lock up, who they are, their needs, the affect of prison and prison conditions, will quickly lead to the inescapable conclusion that often the wrong people are being pointlessly jailed.  Short term sentences that increase the risk of reoffending and harm to society are a waste of money and only cause misery to future victims.  Simply locking up the mentally ill without treatment will work about as well as you think.  Young offenders who mix with adults get tough pretty quickly.  The schools of crime that are our prisons educate with miserable efficiency. A bit like putting a woman in a male jail really.  Obviously wrong when you think about it.

Tara Hudson’s case also bought into sharp focus a very tricky legal wrangle.  How to weigh into the balance of sentencing the predictable awfulness that a particular offender will suffer if jailed?  On one hand, a court can hardly be prevented from sending a down a deserving transgender offender just because the prison service might send him or her to the wrong jail.  Yet to ignore the reality of the cruel and frankly inhuman consequences of a particular decision is to ignore justice.  We readily take account of prison conditions abroad when considering extradition proceedings, but it seems that for a court to take account of the failings of our own system would be a step far.  Perhaps to do so would risk revealing those darker truths.  Some Magistrates and Judges are suprisingly ignorant of the reality of the sentences they hand down, from the actual length of time to be served to the prospect of receiving meaningful rehabilitation.  They are supposed to weigh the seriousness of the offence in proportion to the sentence imposed, but the task is little more than pontificating guesswork if the ivory tower casts the future of the offender into shadow.  Justice is not dispensed with at the end of a case – it goes on for the lives of victims and their families and for offenders and their families.  Ignorance may make life easier.  No doubt the appeal court in Tara’s case spoke genuinely in hoping that the prison authorities would review her circumstances.  But it can hardly have been much of a factor given that they were quite prepared to send her back to HMP Bristol and the shocking abuse they had been told without dissent she had suffered and which any right thinking person would know to be wrong.  Not our problem.  Indeed, we can be fairly confident that the issue of her treatment whilst in jail awaiting appeal played no real part in the court’s thinking given that the Crown Court stuck with the same 12 weeks imposed by the Magistrates below.  She did get moved.  But the court was not to know that.
It is that sort of shoulder shrugging, the not-our-problem-abrogation of responsibility that tells us how a women got sent to a male prison.  A court should absolutely know the truth of the sentences it hands down if justice is to be done.  What happened in a crime is only part of the story.  The impact on the victim, the offender and on society more widely all needs genuinely to be in the mix if justice is to be done.
I see Tara.  The justice system isn’t yet ready to look.
Posted by Matthew Graham, with the assistance of Nicholas Wragg.  Nicholas is a Crown Court advocate with Mowbray’s Crime Team and represented Tara at her appeal hearing in Bristol Crown Court.

The Ched Evans Case – Drunken Consent to Sex

*Please note that since this article was originally posted the Court of Appeal has quashed the original conviction and has, in April 2016, ordered a retrial.  Nonetheless, the observations in the article regarding the issues of drunken consent and the broad issues in the case remain valid and relevant*

Professional footballer Ched Evans has a second chance at appealing his 2012 conviction for rape, as the Criminal Cases Review Commission confirm that they have referred his case to the Court of Appeal. There is apparently fresh evidence not heard by the jury that could cast doubt on the conviction – what that evidence is has not yet been made public. He made a similar claim to the Court of Appeal during his first attempt at appeal, but that was rejected.

On a night out in Rhyl in 2011 Ched Evans and his mates went on a drinking crawl. By the early hours one of those mates bumped into a drunken female, and the two of them went back to a nearby hotel room and had what a jury found was or might have been consensual sex. The friend had texted Mr Evans, who decided, on his own account, to go to the hotel with two other friends. They stayed outside, whilst Mr Evans went into the hotel, lied to the night porter to get a key card, went into the hotel room, joined in and then took over the sex. The friends briefly tried to film what was going on from outside the window. Mr Evans and his friends all left, Mr Evans by the fire exit, and went to his home, leaving the girl in the hotel alone. The same jury found that Mr Evans’ had raped the female, and the Judge gave him 5 years.

The case attracted particular attention when Ched Evans was released and tried to resume his playing career, a prospect met with dismay by supporters of teams with whom he was connected. He remains outside top level sport.

The case is an interesting example of the tussle currently on going in the criminal justice system about how to deal with cases of drunken sex and what amounts to consent. What Ched Evans did, on his own account, was pretty awful, morally reprehensible, but it’s not for us or the law to pass moral judgement. The legal issue in play arises by balancing two, often competing principles: on one hand a complainant consents if, and only if, she has the freedom and capacity to make a choice, and she exercised that choice to agree to sexual intercourse. On the other hand, a drunken consent is still consent. The jury in this case was sure that the lady neither consented to having sex with Ched Evans nor did he reasonably believe that she was consenting, but he carried on nonetheless. It was about her capacity to choose. She has always said that she has no memory of events, so his guilt flows from the evidence of her intoxication, obvious as that must have been to Ched Evans. Either that or he was totally and unreasonably apathetic to the issue.

Ched Evans has complained bitterly about his conviction ever since, focussing on the drunken consent is still consent line. That a jury who actually heard the evidence unanimously convicted him (a jury that on the face of it was perfectly willing to give the benefit of any doubt given they acquitted his co-defendant in circumstances fairly close to his own) was enough for the court of appeal to reject his first appeal. Frankly, given his apparent enthusiasm for having sex with a girl he had never met, never spoken to, who was in a locked hotel room with another man which he had conned his way into, in persuading his mate to step aside for the 30 mins or so it took for him to satisfy himself before disappearing off home never to be seen again, one might imagine why a jury found that he was in no mood to be distracted by the inconvenience of free consent, as obviously drunken as it must at best have been. Some would be surprised that his then girlfriend, now fiancée, stands by her chap. Any man or woman who engages in sexual activity like that is taking a serious risk. In years gone by perhaps society would have so frowned on the promiscuous woman for allowing herself to be in that position that the idea of prosecuting let alone convicting a man for having his way would have been absurd. Well as Ched Evans found out, no longer is this so, and we are a better and safer society for it.

Yet this moral positioning risks disguising a confusion that goes to the heart of the issue of consent. We have all done things we regret. We have all done things that in the cold light of day were both unwise and maybe shameful. Whether it is drunken adolescents discovering cider for the first time, boorish footballers getting carried away with their status or married couples losing respect for each other, things happen that with hindsight seem a bad idea. But consent, and indeed reasonable belief in consent, happens in the moment, not in the moralising that might follow, nor indeed in the planning. Being drunk means losing inhibitions and impaired judgement, and a voluntarily intoxicated adult who goes on a night out, who stumbles on their own two feet into bed with someone else can hardly complain that it was the gin what did it. We don’t see nor do we expect to see two very drunken one night standers each being prosecuted for raping the other just because neither of them had the capacity to consent nor to reasonably have thought that the other was consenting.

This highlights that the current focus in our justice system is often directed by what is perceived by the police or the CPS as an imbalance of power, as the forced will of one on another, rather than on the legal question of consent itself. This is why Ched Evans was prosecuted and convicted. The case was all about he and his friends, on a drunken lads night out together willingly ending up in a hotel room with a lone, highly inebriated female who was willing to lie on her back and, for whatever reason, not loudly protest. In these terms, the balance of power was so overwhelmingly against her that to talk of her free choice seems rather pathetic. But we must be very careful of imposing our own moral judgements on others. What might be distasteful to one is a good night out to another. If a girl or a guy wants to go out, get drunk and have a night of casual sex then so be it, and beware the hungover whimpers of regret, whether the person can remember what happened or not.

Resolving rape allegations that arise in a boozy haze is a difficult and miserable business indeed, and the law should stay focussed on the reality of the choices made by both parties at the time of the incident. Those choices, if freely given, must be respected, however subsequently regrettable they may be. On the other hand, as Ched Evans has discovered, drunken consent does not mean that anything, anytime, by anyone, goes.

 

Update:  2 March 2016

It is reported that Ched Evans’ appeal is listed to be heard in the Court of Appeal on the 22 March, so we should get hear what “Fresh Evidence” now exists and whether it makes any difference.

Update: 21 April 2016 – The Court of Appeal has quashed the conviction and ordered a retrial.  The Court of Appeal said it had heard fresh evidence not available to the original trial, but we have not been told about the nature of that fresh material because there are reporting restrictions in place to help make sure that the new trial is as fair as possible.

Criminal Court Charge

Since April this year anyone convicted of a crime, from motoring to murder, has had to pay a fixed tax, called the Criminal Court  Charge.  It is a non means tested tax on offending.  A low offence carries £150, more serious cases £180, up to £520, £900 or £1200 if you have a trial and lose or end up in a Crown Court.  The Ministry of Justice says offenders should pay for the cost of the system that convicts them.
A ‘polluter pays’ tax system is hardly controversial, but the Court Charge has proved problematic.  The law gives no discretion over the tax, irrespective of what the defendant has done or how much they can afford to pay.  So a penniless, homeless drunk in the cells will have to pay his £150, just like the millionaire driver who speeds.  The court must order the charge even where there is no prospect of it ever being paid, such as for a person serving life in prison, or where the defendant will be deported, or where they simply have no money.  The court must order the charge even if they would rather the defendant’s limited means went towards compensating the victim.
This nonsense is ignored by the Ministry of Justice who prefer the mantra of austerity.  Easy for Mr Gove and his minions, less easy for Magistrates and Judges who actually have to hand out this injustice day in day out.  More than a dozen Magistrates have already resigned in the face of it.  Recently a Leicestershire Magistrate faced action after trying to pay a Criminal Court charge himself on behalf of a defendant in the dock.  A string of judges, Magistrates, lawyers and academics have railed against the obvious injustices that are arising day in day out.  Innocent defendants are encouraged to plead guilty because the risk of losing is so unaffordable as to be impossible to countenance.  For example, the homeless man who takes some food from a bin but is accused of stealing it knows that if he is convicted he will have to pay a £900 court charge.  No if or buts.  So he cannot have a trial, he must plead guilty, in truth because he is too poor to ask the court to accept that he was desperate not dishonest.
The abandonment of the rule of law, of just, proportionate, fair sanction for breaking the rules, with the imposition of arbitrary and disproportionate sentences without judicial discretion is dangerous and unsettling.  The economic arguments may be compelling.  The criminal justice system is creaking, perhaps collapsing under the strain of unprotected budget cuts.  But it is a major worry that the government is unwilling to trust Magistrates and Judges to use their discretion about when or whether to impose the Court Charge.  Why not?  It can only be through a fear that they would exercise that discretion to avoid injustice, but in so doing the exchequer might miss out.
And this highlights a simple truth – the Minstry of Justice doesn’t care about justice any more.  It cares only about cutting short term costs and raising revenue. If that causes or facilitates injustice then so be it.  Think not that this is the lament of the guilty con who can no longer weedle his way out of his dues.  The  ready abandoning of the principles of justice has profound impact.  Take, for example, the Crown Prosecution Service, our state prosecutor that is in such a state of decline as to make the role of the victim a certain misery.  Rhetoric about victim rights masks a truth in which a just outcome is easily lost in a cost saving plea bargain, or a failed investigation, perhaps yet another botched prosecution that collapses in wave of shrugged shoulders from a demoralised civil service.  When proportionality in the criminal justice system becomes an inconvenience, what is really right or wrong, good or bad, serious or minor soon gets overlooked, because it makes no difference to the outcome.
Or no difference on paper.  But as those magistrates who are resigning, or he in Leicester who made a simple act of charity to pay the unjust charge, well know, there are real people in the criminal justice system.  Real people with real lives, whether defendants, victims, witnesses, their families or children.  To them, to us, if not to Mr Gove or his beurocrats, justice matters.
The Government should forthwith introduce judicial discretion to the Criminal Court Charge.  It will make zero difference to the monies actually recovered but might just give a hint that the present administration is prepared to care about the principles of justice that have meant so much to our rule of law for so long.  And it might even help keep our Magistrates on the bench.

Matthew Graham

 

Update 8/12/15:  Hooray.  In early December 2015 The Ministry of Justice announced what has widely been reported as the abolition of the Criminal Court Charge completely from the 24 December 2015.  The boring legal bit is that strictly speaking the Court Charge is not abandoned but reduced to zero in all cases pending a review.  Still, the U-turn is much to be welcomed, and continues a pattern of the current Minister reversing the policies of his predecessor.