Vera Baird DBE KC

Chair Criminal Cases Review Commission. Member Women’s Justice Bd.
Ex Victims’ Commissioner, Solicitor Gen & PCC. Fellow St Hilda’s Oxford. Writer. Labour Party

Category: ARTICLES

  • DNA and Rape an article for Progress Online

    Vera’s article written for progress online about the proposed destruction of DNA by the coalition. Also available on the Progress Online website.

    Here we are again

    The Coalition’s proposals to destroy DNA currently held on the national database will be disastrous for the future of rape convictions. They must reverse the policy as they did on their equally misconceived plans to give anonymity to defendants and to halve sentences for guilty pleas, in rape.
    They show overall a pitiful understanding of justice for women. That is not surprising from a government of millionaire men who have deliberately unpicked those parts of the Equality Act 2010 which required all public authorities to screen proposals against their gender impact and therefore have nothing with which to correct their dominant male culture-based perceptions. There will soon be a case for a national women’s demonstration to make clear that contrary to their views, women will not take the brunt of the cuts and go quietly back, impoverished and dependant, into domestic life.
    They intend to destroy valuable evidence, in DNA samples, that will and already does help to advance justice for rape victims.
    At most, 7.5% of rape complaints made to police result in a conviction, though if a case gets as far as court, convictions are 55%.  Most complaints drop out during the police investigation or when the case is in CPS hands, prior to charge. It happens for a variety of reasons. Many cases fail then through loss of confidence by the complainant who knows she has to give evidence on intimate facts; will be put on trial herself and may not be sure that police and CPS are on her side. These factors do not necessarily relate to the quality of the case against the defendant. Potentially successful rape prosecutions, in which the evidence is good, are lost through these confidence issues, at an early stage.
    It is now well-documented that rape is often a serial offence. It is committed to exert power over women. Perpetrators with this mindset offend until they are convicted. Some significant recent prosecutions have reinforced this –notably that of the taxi driver Worboys and of Craig Reid who terrorized many women over many years.
    To destroy  DNA which has been lawfully taken from a suspect in a rape case flies in the face of the sense made  by these facts when understood together. Many guilty rapist go free because both women and men complainants are still  insufficiently supported by the justice system and do not have the confidence to go as far as court.
    Parliamentary Questions ought to be asked about how many rapists have been convicted through DNA matches with those from earlier cases in which the prosecution failed. How many serial rapists have eventually been run to ground in this way?
    When DNA from an earlier case is matched to a current case, the earlier victim can frequently be persuaded to give evidence. She will realize that her testimony is no longer just important for justice for herself, but also for the protection of other women, including the current victim and potential future ones. Women who have lost self esteem through their violation feel that justice for themselves is not very important, not worth the additional humiliation they expect in court. However they will testify  when they see the need to help another victim and to protect others from the trauma they have sustained themselves.

    Additionally, it is obvious that two allegations of rape by two different women, heard together,  present a significantly stronger case before a jury than a single allegation made by one victim. The conviction rate in multiple cases is higher and many defendants faced with multiple accusers will accept the inevitable and plead guilty.
    Hence DNA matches can help to build strong cases in a field of investigation and prosecution which has historically produced poor results.  Additionally, this process plays a significant role both in the ongoing encouragement of women to take their rape case to court and the continuing informing of the public as jurors that rapists are dangerous men.
    In this context, retention of DNA is a relatively minor interference in personal privacy. DNA testing is so accurate that it is highly unlikely that it will produce false allegations. The legal process described above will only apply if the match is a true one and it is that situation which brings the balance down  in favour of preserving potential future evidence, even though innocent DNA will also bekept.  This is simple and clear. Surely even a Coalition which devalues the lives of women in most of their policy proposals can see that.

  • Covert Policing

    Vera’s article written for Left Foot Forward on the covert policing of Mark Kennedy. Also available on the Left Foot Forward website

    Failure to disclose evidence reminiscent of the dark days of miscarriages of justice

    Policing climate change protesters by embedding undercover officer Mark Kennedy with them for seven years looks out of all proportion to the risk they present to the public. Crazier still and seemingly far more wicked is the subsequent attempt to convict many of them by suppressing the very intelligence Kennedy’s sleuthing had disclosed.
    Twenty six protesters were charged with conspiracy to occupy Ratcliffe on Soar power station though police had a covert tape from Kennedy making clear that the meeting where they were arrested was merely to outline the plan and request volunteers. They knew, therefore, that many of those arrested were not involved but were hearing of the plan for the first time. Nonetheless six of them were prosecuted and the tape that could have acquitted them was kept back. Last January the CPS, having apparently just discovered the truth, dropped the case at the door of the court.
    Twenty others arrested at the same meeting had already been convicted, in a trial in which judge, jury and defendants had been kept totally unaware both of Kennedy and the tape. The 20 had agreed to  occupy the plant but justified it as a minor crime to prevent the greater crime of carbon pollution, a defence which the meeting tape might have supported. After the acquittal of the six and when journalists were circling CPS wrote to solicitors for the 20 asking them to appeal

    Police now say that far from CPS acting promptly on discovering the truth, they knew about Kennedy and the tape from the start and were advising, impliedly, against police better judgment, that they should not be disclosed. This conflict echoes scenes before a recent Commons Committee when Deputy Police Commissioner John Yates and Keir Starmer, head of the CPS blamed each other for the poor quality of the original phone hacking inquiry.
    This dispiriting case thrusts the criminal justice system back into the dark days of the Birmingham 6 and  Guildford 4, when the prosecution hid material, apparently driven by public clamour to convict someone for terrorist killings. Even that wholly unpalatable  justification for injustice is absent here.

    The law is clear. The prosecution must disclose all material that may undermine their own case or assist the defence. Any claim to keep any of it secret – and none was made here – has to be decided by a judge.
    Danny, one of the “6” told me of the stress and worry he and his family suffered between his charge and his acquittal, afraid that he would be wrongly convicted.

    If the public sees this as an attempt to pervert the course of justice, people like Danny will not be the only victims. In the miners’ strike hundreds were charged with picketing offences by police to break the morale of Thatcher’s “Enemy within”. For years thereafter, in counties like Durham, where every family had a mining link, no jury would ever convict a defendant on the word of police, because everyone knew a story of police misconduct.  This case could have a similarly chilling effect.  What better Get out of Jail card could any criminal on trial have than public suspicion that the prosecuting agencies sometimes deceive the courts.

    The inquiry which has been announced must be speedy, relentless and above all, independent. If it finds that the powers that be tried to justify the huge cost to the public of Kennedy’s work by stage managing mass convictions, the implications in an atmosphere of huge cuts in police funding will go further again than even the obviously serious consequences of this case.

  • Countering Lynn Featherstones equalities column

    In Lynne Featherstone’s column of 18th November she described herself as someone who “spends every day fighting for equality”

    She wasn’t last Tuesday when Fiona MacTaggart MP asked, in the Commons why her Coalition has scrapped the duty in the Equality Act 2010 for public authorities to assess the impact of their policies on the poor.  This, in sections 1-3, is called “the socio-economic duty”

    “This legislation is just words” Ms Featherstone told a startled House of Commons, saying how fully she supported the repeal.

    Last year, in the passage of the Equality Act itself, Lynne Featherstone said:

    “The Liberal Democrats think the socio-economic duty is a good and important thing “  We fully support its aims (Hansard 11.6.09 Col 131-2)

    “It is one of the most important elements of the Bill” (Hansard 11.6.09 Col 132)

    And she presented amendments (many accepted) to increase the number of public bodies which would be subject to “one of the most important element of the Bill”. (Hansard 11.6.09 Col 131)
    She was right. The socio-economic duty was good.  It would have helped to weaken inequality by protecting the poor from the adverse impact of public policies. But it won’t protect them now, torn from the statute book, by Featherstone and friends, despite her praising it as “a good and important thing” only a year ago. Chancellor Osborne is being sued, by Fawcett, for breach of a similar duty to protect gender. This is for the disproportionate impact on women of his spending cuts. So, the Tories do not want another enforceable duty, especially one on socio-economic equality that they would fail repeatedly. Their welfare and housing benefit cuts, probably tuition fees and, one predicts, many measures yet to come would make them fail it. It is impossible to tell a Court that you have had regard to reducing socio- economic inequality when you are systematically increasing it.
    If Ms Featherstone was genuine when she said last year  “Socio-economic disadvantage is the greatest inequality there is and it would have been negligent for the Government to leave (this duty) out (of the Equality Act) (Hansard 11.6.09 Col 129)
    How would she then have described a Government Minister who took the duty out? Not, I think, as “someone who spends every day fighting for equality”

  • Bill of Rights – Solicitors Journal

    Vera’s comment piece for the Solicitors Journal on the Human Right’s Commission. Also available to subscribers on the Solicitors Journal website.

    Prepare for Battle
    The Coalition Government’s  ” Independent Commission to investigate the case for a British Bill of Rights” is  about politics not law. Backwoods Tories may bay for an end to Foreigners making us give rights to nasty people, but their majority comes from the Liberal party, which has demanded human rights since the days of Jo Grimond. This obliqueness of purpose grows clearer as one recalls that we have a perfectly good British Bill of Rights already.

    Many Tories are uninterested in human rights and none of their nominees is an expert.  QCs Martin Howe, Anthony Speaight and Jonathan Fisher are eminent men but in construction, business law and intellectual property. One senior Tory described Mr Howe as anti-Europe; Mr Fisher thinks the ECHR is “fundamentally flawed and lop-sided” and from delivering last year’s Bindman’s Lecture with Tony Speaight I understand his message to be that British commonsense could do a lot better.  They have each written a Tory paper on rights and a very quick, not intentionally disrespectful, tour suggests that each has written essentially the same paper.  The fourth Conservative nominee, Mr Pinto-Duschinsky has more recently again written the intellectual case against the Court but it is really against the  HRA. He sees British law or Parliamentary sovereignty made subservient to an expansionist unaccountable Strasbourg  run by judges, from micro-states  like Andorra or doubtful ones like Albania. At the very least it gives too little regard to the margin of appreciation – the way British society should implement abstract Convention Rights. On the whole he thinks it should be abandoned but that would take us out of the Convention, out of the Council of Europe and probably out of the EU as well.

    His sub-text is that the British Judiciary has in turn become too bold and we should pull back from Strasbourg , curb its bad influence and block them from intruding further into Parliamentary territory on economic and social issues. It is probably a unique reason for wanting a Bill of Rights that it should take power away from the courts and give it to Parliament – a.k.a the majority government.

    The Lib-Dem nominees- Labour peer Helena Kennedy, Philippe Sands and Anthony Lester are undoubted experts in the rights area – Professor Sands is an international lawyer but one with a well-known and strong human rights bias. And all, so far as I am aware, if they felt the need of another  Bill at all, would want it for the opposite reason, to empower the citizen and further protect him from the over-weaning state.
    So these eminent people are not going to agree.  On the face of it the Commission Tories are hand-picked to be right of the mainstream and perhaps that shows there is no strong  political pressure for  change.  Perhaps they are there to assuage the remnants of the Nasty Party and to keep public opinion at bay on prisoners votes and sex offender rights. However nothing can be ceded. Implementation would be second term task, and any second term would be likely to lack the leavening influence of the Liberals.

    If I were the Tory Commissioners I would have a concerted attempt to drive the liberals backwards or split them to achieve a majority for regressing rights. If I were the liberals I would find it easy to stand intellectually firm but would go for a boost to our meagre array of semi-entrenched rights. After that they’ll all be friends and their huge intellectual power could tackle the 120000 case backlog at Strasbourg and narrow the courts admission criteria. There is a big case for this practical reform. There is a big case too for keeping Strasbourg, the international guarantee for our sometimes unpopular human rights.

  • Abortion: Leaving well enough alone

    What possible point could there be to Nadine Dorries legislative amendment excluding abortion clinics from ever giving advice to pregnant women if it isn’t to limit abortions?

    In what many commentators have called a dishonest article in the Mail last week, Ms Dorries MP asserted that the point of her proposed change to the Health and Social Care Bill is that she supports a woman’s right to choose. Her opening paragraphs disclose the real reason by graphically describing a late abortion she alleges she witnessed.

    How is this personal horror story relevant to an amendment on who should give advice to women with an unwanted pregnancy?  It isn’t.  It is anti-abortion propaganda.

    So called “pro life” campaigners know that they cannot turn the clock back far enough to reverse the 43 year old Abortion Act. Instead, they seize on every Health Bill as an opportunity to put an obstacle in its way.

    Hence Dorries supported cutting the time limit from 24 to 20 weeks despite blanket medical opinion that no scientific advance required such a cut.

    Similarly, all the evidence is that the current pregnancy advice system works well. Dorries allegation, in the Mail, that “thousands of women”are conveyor belted into abortions quotes no source and no basis in fact. Frank Field who supports her amendment for his own reasons, has made clear that he has no criticisms of advisers.

    David Steel, the architect of the Abortion Act, told The Observer today

    \”The Department of Health has complete power over licensing and de-licensing clinics. If there were any evidence of failure to carry out proper counselling of patients, they can close clinics. More positively there is nothing to stop them issuing guidelines on counselling if they think that necessary\”

    Women who find they are pregnant go to their GP or to a sexual health clinic and simply register for ante-natal treatment unless they don’t want a pregnancy or have doubts. In either of those cases, their first discussion of other options will be with their own clinician.

    Both women who are pleased to be pregnant and those who are not deserve expert advice.  Ms Dorries says that she wants this advice to be “independent” of those who offer abortion. That is a very odd idea. By definition, a woman who is looking for something other than ante-natal help is considering abortion.  Secondly, it is a strange stance for someone who supports “the right to choose”, unless that right to choose is the right to be advised to choose anything but an abortion.

    The experts in this field are the British Pregnancy Advisory Service and Marie Stopes, both of whose focus is rightly on preventing unwanted pregnancies. They both certainly provide abortions but both their websites make the case for other ways forward as well.

    They offer a template to help women to think the issue through and to evaluate their emotions. Twenty per cent of women who go to them for face to face advice intent on an abortion, change their minds and continue their pregnancy to full term.

    It is worth remembering that an abortion is only lawful in the UK if two medical practitioners certify that terminating a pregnancy will be less damaging to a woman’s physical or mental health than completing it.

    Even David Cameron has now seen that there is no case for preventing these tried and tested organisations from advising. He will vote against the amendment and it is believed has written to his backbenchers encouraging them to do the same. Yet another somersault, though Ms Dorries said in the Mail that she expects him to change his mind again.

    On Friday, Louise Mensch MP made a bid for a share of the limelight as an honest broker. She tabled a different  amendment which serves only to add a further layer of unnecessary muddle.  She wants an option for advice to be available that is “independent” both of abortion providers and of faith groups.

    Firstly, that is an insult to some excellent faith groups, many of whom give welcome support to women who choose abortion.

    Secondly, BPAS and Stopes are both prepared to counsel every option. They are not correctly seen as zealots on the other side of an ideological coin from groups like LIFE who reject abortion in all circumstances.

    Thirdly, any woman already has the “option” of advice from all of these and an array of further pregnancy advice groups.  The problem with Dorries proposal is that it compels the exclusion of abortion providers and compels the taking of advice from others.

    There is every need to prevent that and no need to put options already on offer into law.

    This issue does not merit debate. It distracts from the need to fight, tooth and nail, the Health and Social Care Bill which will open our National Health Service to competition and ensure that the title \”National\” no longer applies.

  • No blanket sentencing: Comment is free 18th August

    Also available on the Guardian website.

    National revulsion and popular demand for punishment are dangerous things. They licensed the rule-bending that miscarried justice in the 80s, for the Birmingham Six and Guildford Four. In the miners’ strike, once Margaret Thatcher had called the NUM “the enemy within”,it was next to impossible to get them honestly policed or fairly tried.

    How far from that danger re-emerging are we now when David Cameron asserts that everyone involved with rioting, however peripherally, should expect to go to jail; 100,000 sign a petition for those convicted to lose their benefits and councils intend to evict people who live in the same house as culprits, just for being their brother, sister or grandparent?

    The Guardian reported this week that magistrates\’ clerks had \”instructions\” from a \”senior clerk\” to advise the bench to disregard all sentencing guidelines and jail every riot defendant. This is apparently a policy directive from the courts service, the government department that administers the courts. It is not from the higher judiciary, who speedily distanced themselves from it.

    We are only aware of it because the chair of Camberwell Green magistrates, Novello Noades, blurted it out. She called it a \”directive\” but retracted the description later when presumably somebody reminded her that she is supposed to be an independent member of the judiciary.

    Although the Ministry of Justice denies responsibility, the directive represents the hostility of much of the public, amplified by government spokespeople, directed specifically to influence the courts. When the community is rightly angry it is the duty of the courts to punish more severely. Serious custodial sentences must follow for \”rioters\” but, whatever the prime minister says, the judiciary\’s role is to dispense individual justice. Magistrates must distinguish the professional criminal from the easily led and every shade of culpability in between – and make the punishment fit the criminal.

    This \”directive\”, taken at its fullest, is an attempt to stop that. It, in effect it says that fines and community penalties are abolished for rioters and suspends the carefully constructed sentencing process comprised in the guidelines, which would inevitably result in some non-custodial penalties.

    There is ample sentencing allowance in all of the guidelines for the most serious case. Some of the most relevant were formed after the Bradford riots in 2001. They are promulgated by the sentencing council whose president is the lord chief justice. It is made up of judicial, practitioner and academic experts. It sets out to be comprehensive and to bring consistency while maintaining the independence of the judiciary.

    Furthermore, its definitive guidelines are binding. For instance, for handling stolen goods of less than £1,000 the usual starting point is a fine or low-level community penalty. Those options widen to include 12 weeks\’ custody if aggravated by the way the goods were obtained. Here they were mainly got through extremely serious and violent burglary. Harm done and personal culpability are the watchwords followed by looking carefully at any mitigation. An early guilty plea, showing remorse and saving trial costs, can justify a discount of up to a third.

    Step by step, this carefully guided analysis produces a sentence compatible with legislation and appropriate to the five purposes of sentencing: punishment, protection of the public, deterrence, reform and rehabilitation and reparation to the public.

    It seems sinister that there was an attempt to dislodge the lawful process in these cases and substitute blanket imprisonment.

    If the separation of powers means anything, it is that the courts are independent of government. Excessive sentences over the past few days – including five months\’ imprisonment for a single mother for handling a pair of stolen shorts, six months\’ for a father receiving two tennis rackets and many children sent into custody – make clear that the directive has had its effect. Serious crime requires serious punishment, but that is always the case.

    Indeed, the first crown court sentences have been predictably severe. Perhaps it is important to make a point, even if defendants such as those likely to be known as the Facebook Two win on appeal. The less harsh sentences came from the Manchester judge who announced, possibly in solidarity, that he too was exceeding the guideline.

    So what are the prospects of future contested trials being fairly considered in this context of some malleable lay magistrates apparently being prepared to accede to secret agendas? Public craving for convictions will be an open secret. The historic miscarriages of justice were caused by just such an impulse and there is another lesson from history.

    During the miners\’ strike it was very difficult to get fair acquittals for strikers at the magistrates\’ court. After the strike, it was hard to get juries from some mining areas to convict. The latter was the community\’s revenge for the former – what it saw as dishonest policing and a biased judiciary.

    Although the riots brought a terrifying glimpse of physical chaos, injustice is almost as frightening.

  • Men who Rape in their sleep: Sexomnia or another excuse

    Historically, rape defences have sought to move the responsibility from men and to blame women, for instance for wearing the wrong clothes, having the wrong amount to drink or for not uttering the word  “no” plainly enough.  Relatively new is a defence that some men can be wholly without responsibility for sexual assaults because they may be unconscious and asleep while having sex. In at least four British cases, defendants have been acquitted of rape in this way and freed. These verdicts are arguably wrong in law. They are certainly a travesty for the women with whom they had forced sex and any such defendants present an ongoing threat to those who may encounter them asleep in the future.
    In December 2005, a York man was acquitted of raping a woman with whom he had had a night out and who slept in his bed whilst he slept on the sofa. She woke to find he had removed her trousers and was having sex with her. He said that he had been a sleepwalker since he was 13 and remembered nothing of the attack.
    In July this year, BBC Wales reported the acquittal at Swansea Crown Court of a man who had sex with a 16 year old who was sleeping on top of the bed in which he was asleep. He called his wife and ex partner to testify that he often “groped” them in the night without remembering anything the following morning.
    In 2007, an RAF mechanic was acquitted though he drank a bottle of vodka at party before getting naked on top of a 15 year old female guest who was sleeping in the living room. He said he didn’t remember anything.
    There is an online report of a Liverpool case in March 2011 in which CPS withdrew a rape prosecution when presented with evidence that the accused man suffered from this kind of unconscious sexual behaviour which has been called sexomnia.

    \’Sexomnia\’ was recognised as a clinical condition in 2003 by some Canadian researchers. It is said to be akin to sleepwalking and likely to occur in the same people. It is described as parasomnia and as a serious brain disorder. It increases with sleep deprivation, stress and alcohol but it can be controlled by anti-anxiety drugs.  It is apparently a purely heterosexual disease. It is unclear whether it has been fully challenged in court, as it clearly ought to be. For instance if an alleged sexomniac were partially conscious and not wholly unconscious, he might still form the necessary intent to be guilty of rape even if his inhibitions were affected by his semi-conscious state, since automatism is a defence only where there is a total destruction of voluntary control; impaired or reduced control is not enough. There ought to be challenges to the diagnosis in general and to its application to the specific defendant. Further, since it does not seem to be suggested that a sexomniac seeks sex every time he is asleep, there should be further challenge to the likelihood of its occurence on the date in question and to the factual compatibility of his behaviour that of a man over whose conduct he says he has no conscious control. At least one member of the Royal College of Psychiatrists has expressed doubt as to whether an unconscious person could carry out something so complex as having sex.
    However, it has been legitimated in these recent cases and has to be taken seriously now, because of the profound danger it presents to women.
    Most crimes consist of a criminal act and a state of mind, like intention or recklessness. However if someone is asleep they are not in control either of their body or their mind but are acting involuntarily in a state of automatism. That is the claim in these cases and automatism is a recognised defence in law.
    If automatism is raised the court must decide whether, it is sane or insane automatism. The terms “sane” and “insane” are used here in a specific legal sense, rather than as psychiatric terms with a precise modern meaning. A finding of sane automatism would bring a complete acquittal but where the automatism is insane, the verdict, although not guilty, will be subject to the rider ” by reason of insanity” and will require that the defendant be sentenced to a hospital order or another psychiatric disposal. All the cases referred to above concluded with outright acquittals.
    If a defendant at trial puts his state of mind in issue, through evidence of automatism, the prosecution may argue that the defence really amounts to insanity. Although expert evidence will be important it is the judge who must make the decision. Sane automatism is when an external factor such as the consumption of alcohol or a blow to the head causing concussion is responsible for the malfunctioning of the mind. Insanity was defined in M’Naughten’s case in 1843:-
    “a defect of reason caused by a disease of the mind so as to not know the nature and quality of the act he (the defendant) was doing.”
    As Blackstone’s Criminal Practice make clear:
    “The defence of insanity …today operate(s) largely as a restriction on what might otherwise be a complete defence based on ….automatism”
    In a case called Burgess, where a sleepwalking man hit his girlfriend on the head while she was asleep on the sofa, the Court of Appeal said that if sleep-associated automatism is caused by a functional disorder of the mind, as opposed to a factor like alcohol, it fits the M’Naghten definition of insanity and is therefore insane automatism.
    That precedent suggests that the recent rape cases are examples of insane automatism, caused by sexomnia, as a functional disorder of the mind.  That appears to be so even in the case of the RAF mechanic, whose automatism, at first sight, might be thought to have been triggered by alcohol, because the reports make clear that he did not say that he was in drink at the time but relied, instead on sexomnia.
    Such acquittals present a serious cause of concern firstly as to the effect on the woman. The fact of sex may well have been admitted by the defendant at court. His defence is not that she consented but that he was asleep. So far as the complainant is concerned she has been raped. Indeed Judge, jury, prosecution and defence may all agree that she has suffered unwanted sex. She is likely to be as traumatised as any other rape victim, perhaps more so since the man is seen merely to have followed a thoughtless impulse in his sleep. It may be harder to recover, too, if one can never understand the assailant’s motive and when looking for an explanation finds only a blank mind looking back.  There is an additional danger, that in the aftermath of an acquittal, it will be assumed that there was no rape at all and therefore no suffering and no survivor in need of support.
    The acquittals raise wider issues too. It is a frequent incident of modern life that friends and even acquaintances of opposite sexes stay overnight in each other’s homes. Despite that obvious reality, women are often blamed if sexual assault occurs. However, in two of these cases, the women were kept totally in the dark by each man about the specific danger he knew he presented.  In the Swansea case he called evidence that he groped women in his sleep; in the York case, he knew, at least, that he sleepwalked. Whether or not that could ever be argued to be criminal recklessness, especially since neither man appears to have sought treatment for his affliction, it is clearly morally reckless for a man with that personal knowledge to invite an unknowing woman to sleep in his home. That is blameworthiness which ought to aggravate an offence of rape with which he is convicted and should influence the nature of the order made.

    The further concern is that such acquittals have had the effect of freeing men who themselves assert that they suffer from a continuing disease which may cause them to have sex in their sleep with unwilling women.
    Professor Ormerod notes that the true mischief which underpins the distinction between the two kinds of automatism is :
    “the likelihood of danger posed by uncontrolled recurrence of the mental condition”
    He quotes Lord Lane’s judgment in the case of Burgess:
    “if there is a danger of recurrence that may be an added reason for categorising the condition as a disease of the mind”
    Clearly, that risk is present in these cases with the possibility of traumatic consequences for victims such as these woman complainants.  Complete acquittals leave the defendant free as to his future conduct and without any obligation to seek medical treatment. It is not fanciful to have concern not only for other women guests who may sleep in his home from time to time but as to what risk attaches to women from him sleeping overnight in an airport with a queue of passengers, or from him falling asleep on a train.
    If indeed this disease is to be taken seriously, all parties must appreciate the dangers which follow from a finding that a man will have sex with unwilling women whilst he is unconscious through sleep. The decision as to whether the defence applies at all and if so whether any automatism falls into the sane or insane classifications are taken by the judge. He will require substantial assistance from the Crown as well as the defence. It is unlikely that CPS Liverpool should have withdrawn a prosecution on mere receipt of evidence of sexomnia, without challenging it at every stage, so as to put the decision into court and to ensure that it is taken in full knowledge and appreciation. The medical evidence of sexomnia makes clear that it can be treated so that a hospital order or another psychiatric disposal which will achieve that will be in everyone’s interests.
    The CPS website now contains guidance for prosecuting these cases. It says that it is “essential that this defence is robustly challenged” That is a view with which we should all agree.

    Davies ; HYPERLINK \”http://uk.news.yahoo.com/sexsomnia-case-man-cleared-rape-165341022.html\”http://uk.news.yahoo.com/sexsomnia-case-man-cleared-rape-165341022.html
    Bilton: HYPERLINK \”http://news.bbc.co.uk/1/hi/england/north_yorkshire/4543340.stm\”http://news.bbc.co.uk/1/hi/england/north_yorkshire/4543340.stm
    http://www.dailymail.co.uk/news/article-473525/Sexsomniac-RAF-man-sobs-cleared-raping-girl-sleep.html
    http://www.argentchambers.co.uk/site/news/sexomnia_case_press_release.html
    HYPERLINK \”http://en.wikipedia.org/wiki/Sleep_sex\” http://en.wikipedia.org/wiki/Sleep_sex
    http://www.help-with-sleep-problems.com/sleep-sex.html
    AGs Reference (No2 of  1992) (1994) QB 71
    HYPERLINK \”http://www.dailymail.co.uk/femail/article-474209/Can-killer-sleep.html\” http://www.dailymail.co.uk/femail/article-474209/Can-killer-sleep.html
    See Blackstone Criminal Practice 2011 at A1.7
    See discussion Smith and Hogan Criminal Law, 12th Edition by Professor David Ormerod, at P.280
    Smith and Hogan;Criminal Law 12th Edition at page 282 mischief
    Blackstone ibid at A3.13
    Smith and Hogan ibid at P.280
    M’Naghten’s case (1843) 10Cl&F 200 at page 210 Tindal CJ
    At A3.13
    R v Burgess (1991) WLR 1206
    For instance, see description of the impact of the RAF mechanic’s conduct on the complainant at  HYPERLINK \”http://www.dailymail.co.uk/femail/article-474209/Can-killer-sleep.html\” http://www.dailymail.co.uk/femail/article-474209/Can-killer-sleep.html
    Smith and Hogan ibid at P.282
    R v Burgess ibid
    R v Burgess ibid at P.1212

  • Universal Jurisdiction –  The Individual Freedom to Commence a Private Prosecution should be retained

    David Cameron’s condemnation of the Israeli naval attack on the flotilla and his assertion that Gaza is “a prison camp” ought to make him think again about William Hague’s  decision to abolish the right of a private citizen, in the UK, to start a prosecution for war crime.

    This right came to the fore last December with an imminent visit to London by Israeli Opposition leader Tzipi Livni. She was a key Government Minister at the time of “Operation Cast Lead” the bombardment of Gaza in 2008 which the Goldstone Inquiry had just condemned as unlawful. British solicitors working for people hurt in the bombardment applied for an arrest warrant to prosecute Ms Livny for war crimes. They must have had  convincing information because the most senior magistrate in London granted a warrant. But there was a diplomatic protest and an apparent change of plan and since Ms Livny did not arrive here, the warrant was withdrawn.

    I answered a Commons debate about this at the time, in my then role as Solicitor General. The Government was divided.  The FCO wanted to scrap the power immediately; Gordon Brown apologised to Livny and the Attorney, Patricia Scotland told Israelis, in a lecture that they ought not to be arrested here. However, other ministers disagreed, including me. Withdrawing this right when Cast Lead had just been declared unlawful would suggest that we would help Israel whatever it did. Furthermore, this is a British right, nothing to do with Israel and it should not be dismantled after decades of, sometimes, effective use, to keep us in favour with a country we seem unable to influence anyway.

    Much of our criminal law is territorial, applying to acts done in England and Wales or done by British people but in relation to crimes such as grave breaches of the Geneva Conventions Act 1957, torture and taking hostages we have agreed to prosecute them here wherever or by whoever they are committed. This is universal jurisdiction intended by all the countries who accede to it ensure that there is no international hiding place for perpetrators of grave crime. We have a duty to seek out the culprits and either to extradite them  or to prosecute them here. One example is that an Afghan warlord, Zardad, was successfully prosecuted in the UK in 2005 for torture offences abroad.

    In the UK it is not only the police who can initiate proceedings. Any individual can apply to a magistrate for a summons or warrant to bring someone to court. The test for the magistrate is whether there is some “prima facie” evidence of an offence by the person named. Many serious offences can’t go beyond this stage without the Attorney- General’s consent. But there is a particular quirk in the law that while a summons cannot be issued, in an Attorney General’s consent case until that consent is given, an arrest warrant can be granted without it. A summons to attend court weeks ahead is of no use for a suspect flying into the UK  on a short term visit and so there are two reasons why lawyers for war crime claimants apply for arrest warrants.
    This is undoubtedly a dramatic means of bringing a campaign to public attention but it is also the only practical course. The Magistrate has to act as the gatekeeper refusing access to the criminal justice system for political gestures whilst issuing process, in accordance with the law, if there is a real and ready prima facie case.

    The relatively low test he has to apply gives way to successively higher ones, first to get the Attorney General’s consent and later for the Crown Prosecution Service, who have power to take over private prosecutions, in determining whether the case complies with its standard  that there is a 51% chance of conviction. CPS must also be satisfied that the prosecution is in the public interest. So an individual who gets an arrest warrant still has a mountain to climb.

    Ideally, anyone with evidence of war crimes should go to the police but international inquiries are expensive and may not be a priority. And there have been some clear examples of reluctance to pursue international allegation, as when some years ago Israeli General Doron Almog arrived in London and flew straight out again, having apparently been tipped off that police would have to serve him with a privately obtained arrest warrant, if he got off his plane.  Since the UK  plays a role in negotiating away international conflicts, we have to talk to people on both sides, so it can be argued, as it was in the Livny case, that prosecuting any involved political figure is not in the public interest. Indeed it has recently been suggested that CPS definition of what is in the public interest might include not prosecuting people linked to government with which we have friendly diplomatic relations. So much for universal jurisdiction.
    Meanwhile, in the six months since Tzipi Livny faced a UK arrest, Israel has attacked the  flotilla and continued the blockade of Gaza,  both, like “ Operation Cast Lead” almost certainly contrary to international law. Apart from the unlawful violence against the flotillas, it is the clear view of Navi Pillay, the UN Commissioner for Human Rights that Israel is using starvation as a weapon of war and inflicting collective punishment on the people of Gaza, both as unlawful as they are reprehensible and cruel.

    So, dramatic campaign tactic or not this right is valuable and should continue. Albeit the authorities can defeat it if they wish, it can instead motivate them through contact with the presence of victims and can galvanise an inquiry. Compare the impact of going into a local police station and asking the desk sergeant to investigate a foreign statesman with submitting evidence which convinces a highly qualified District Judge/Magistrate that there is a evidence at first sight on which he is obliged to issue proceedings. This is not an abuse of the criminal process for politics sake it is the exercise of a citizen right which cannot succeed unless it has that first level of merit. The public interest is all too easily defined through the prism of political expediency; the input of ordinary people is needed to make the point that it has other dimensions.

  • Letter to the Editor of The Times

    Yesterday’s decision by Theresa May to cut the Police Inspectorate’s inquiry into the Worboys and Reid rape cases means that lessons from these two shamefully badly investigated cases will never be learnt. Sexual assaults committed by the London taxi driver Worboys were reported to police by a number of victims but he was left to rape again and again, in all seriously assaulting about 120 women. Kirk Reid was reported a dozen times and finally convicted of 26 serious sexual assaults, most of which ought to have been prevented. Scrapping this inquiry is the equivalent of refusing to investigate the causes of a train crash that injured 150 women.

    Importantly, these offences were “stranger rapes”. Officers are supposed to be good at those.  Police defend poor conviction levels by blaming cases between former lovers, or “date rapes” by acquaintances. There, the issue is consent. It is one person’s word against another and a jury less is less likely to be sure of guilt. Campaigners and complainants would say that the police undervalue this kind of complaint. They think they are unlikely to be winners.  A typical comment recorded by The Stern Review (into how the public authorities deal with rape) is   “If a case isn’t likely to result in a charge and conviction I won’t record it as a crime” New research from London Metropolitan University shows that even cases which are recorded as crimes, drop out in high numbers,  prior to trial and that “insufficient evidence” and “victim withdrawal” are the attributed reasons.  Campaigners would call those causes “complaint treated with scepticism” and “women told they haven’t a chance” Nonetheless this type of “Acquaintance rape” is more difficult for police to prove.

    However, both in the case of Kirk and that of Worboys, women were complaining of rape by a stranger, of serious assault by someone randomly attacking many diverse women in the capital at night. Neither assailant was known to any of their victims and there was scant chance of a defence of consent. Yet these women were treated with the same scepticism as in the other kinds of case and none of their complaints was recorded as a crime. These cases make clear that there seems to be no situation in which the police will usually believe a woman who says that she has been raped.
    After ten years of training, protocols, policies and high levels of specialisation brought to rape investigations by Labour Government, negative police attitudes are still prevalent. They are the key reason why the conviction rate remains low. It is an awful irony that Reid and Worboys looked like the cases that conclusively made that point. The Met could not begin to make the usual excuses and the truth was therefore clear at last. The Police Inspectors, on the back of an Inquiry, could drill down into attitudes and bring real change. The £441000 saved by preventing this work is small compared to the price that rape complainants will continue to pay, if police do not learn to treat them with respect.

  • Who will police the Police?

    This week, on the very day that the Equalities and Human Rights Commission reported that black people are 15% of police stop and search victims whilst numbering only 3% of the population, the Commissioner of the Metropolitan Police asked the Home Secretary to protect his force against lawsuits. Typically, lawsuits against the police are for excessive use of their powers. The ECHR’s figures – and recent experience – suggest that such excesses continue. Clearly redress should be available and Stephenson’s pleas should fall on deaf ears.
    If there is one group of people who ought to be accessible to being called to account, it is the police. They have extraordinary powers. They can stop you on the street and search your clothes in public. They can break into your house, use force to throw you into custody, rifle through your most private possessions; detain you without a charge for many days and penetrate your body orifices in pursuit of evidence of some suspected crime.
     This week, newspapers reported Tony Blair’s former Chief of Staff, Jonathan Powell, in his new book, relating that the Metropolitan Police had virtually paralysed No 10 during the cash for peerages investigation. Certainly they seemed to play fast and loose with their powers of arrest. Officers appeared at her home to seize the mild, Christian and totally civilised Ruth Turner at 6am in the morning. This is a tactic justifiable for the arrest of a criminal likely to run away if he knows the police are coming, or to ensure that somebody who might resist arrest is taken by surprise. These are hardly criteria that fitted her situation. Rather their use seems a totally unnecessary invasion of her home and integrity, for which the Metropolitan Police Commissioner, today demanding protection from civil actions for wrongdoing, should be ashamed.
    Although police are valued and relied upon by the public as the “thin blue line” between them and criminal interference with their daily lives, many people have experienced  police using their powers  indiscriminately . Police sometimes also use their powers very specifically, too  –  to pursue the prejudices that a force still overwhelmingly male and white continues to  harbour.
    Both in my career at the Bar and as an MP I have seen plenty of good police and some bad police, the latter usually manifested in a determination to show they are the boss to different tranches of the population at different times.  For example, there were the two devout (black) Christian clergy from Suffolk whose taxi cut across a police car in Tottenham and was immediately stopped by the white police officers. When they failed to apologise and told the police they needed to go, they were arrested for “breach of the peace” and fitted up with allegations that they made vile gestures, smelt of drink and that they and the (black) taxi driver ( who was a stranger to them) all shouted. Reasonable cross examination, in court, demolished that pack of lies, founded, as it was, on the, then, antipathy of white police to any black Tottenham men who got in their way. Civil action for damages for such abysmal disregard of ordinary people’s rights ought to follow, not least of all to discourage repetition.
    Then, there was the northern woman who called police to her violent husband who ran away when he heard their siren. Police left, he came back in an even worse mood, she called police again and he ran away again. This time officers told her that they had had enough of her wild goose chases and she, full of the stress of her husband’s threats, shouted at them. They arrested her, the victim of domestic violence, when they should have followed him to the pub and arrested him. Why did they arrest her? Because they were put out and thought they could take it out, with impunity, on this powerless woman.  The civil court would  tell them otherwise.  
    Remember the G20 protests, the “kettling” of protesters who were fully entitled to be where they were and to go where they wished . Many were detained as if they were under arrest, for long hours, kept from their families, stopped from going anywhere, even to the toilet. These tactics were not the will of the government of which I was a member at the time.  They certainly shocked me.
    One man, as we know, died. We also know that police made up a story that they were subject to missile throwing while they tried to revive him. Thus did they try to cover their backs and only mobile phone film gave us the truth about what happened between him and them. The CPS cannot prosecute, but this family ought to have the right to sue, if they want to mark their loved one’s uncalled for death in that way.
    The allegations of Sir Paul Stephenson’s that actions against the police are all about lawyers mischievously money-grubbing, while most payouts are £5000 to £10000 and thus what he calls “technical breaches” are worrying. There are firms who specialise in actions against the police, as there are specialists in most areas of law. Lawyers make money from law.  Police lawyers make money from using law to defend police.  Payouts of £5 – £10000 can mean that somebody had been detained for two or three hours without lawful cause, or assaulted but with no serious damage. Few civilians would regard those as “technical breaches” and most would be glad that there is a cadre of solicitors prepared to take on this work. Civil actions against the police are all the more important while the Government fails to appoint new leadership to the Independent Police Complaints Commission notwithstanding  the departure of its Chair to greener pastures and the criticisms that have been levelled at it in DeMenezies and other cases.
    Power is a multi-faceted aphrodisiac. It generates not only love of power but a righteous belief that it should be unchallenged. Who are the powerless to show the powerful any truths at all? We remember the Miners’ Strike of 1983-4 and the way the police abused what Thatcher called “The Enemy Within”. I remember the Orgreave Riot trial where detectives scripted uniformed police to frame miners with riot, who had done little but attend a picket. A conviction for riot attracted a life sentence, in those days. 
    Does anything change? Clearly not corruption generated by power and Sir Paul Stephenson this week makes clear that the owners of such power would like to be free to risk being corrupted absolutely.